Society in opposing the Bill in the Upper House; but the learned writer, like Cicero, is never pleased with what other men do, and therefore condemns the arguments which the Counsel of the Society urged before the Lords' Select Committee.

Now, consider for a moment the important points urged against the Bill,-which may be thus concisely stated:

Ir was lately suggested by one of the active Law Societies in the Country, that, in order to oppose any measure in Parlia-" He urged every argument that ingenuity ment which in its consequences might in could devise-except the true one," nainely jure the Profession, the best course for the -"that the scheme contemplated a great practitioners would be to petition in its injury to themselves;" (the lawyers) "it favour! The Law Reformers would then tended to make a monopoly of a considermake a great outcry against it,-asserting, able part of the business of the Profession." as they ignorantly do, that whatever injures The editor, it seems, would have conducted the Profession, must benefit the Public. the case much better than Mr. Selwyn. He This sarcastic recommendation was perhaps would valiantly have avowed his personal induced by the attack made on the Attor- motives, and eschewed altogether the strong neys by the Honourable Mr. Bouverie when public grounds on which the project was the South Sea Company's Trust Bill was impeached. discussed in the House of Commons.1 "The fact" (he said) "of the Bill being opposed by the attorneys was the strongest argument in its favour. The two geat evils 1st. That the Bill proposed to establish the of the country were taxes and attorneys. legality of trading in Trusts, and making a profit What an attorney was, could not exactly out of that trade. 2nd. To establish the prinbe defined; but it appeared to him (Mr. ciple of limited liability of trustees, and to abBouverie) that he was a professional gentle- 3rd. To sanction an unlimited capacity in a solve them from all personal responsibility. man who charged 13s. 4d. for doing something, and 68. 8d. for doing nothing." amount. corporation to hold and manage land to any This illiberal misrepresentation of the cha-rately decided by the Legislature, that charity 4th. To contradict a principle deliberacter and motives of attorneys and solici- estates in trust should not be continued in the tors came with a bad grace from the brother hands of corporations, but transferred to indiof one of the governors of the South Sea Company; but notwithstanding the able remonstrances of Mr. Malins, Mr. Follett, and Mr. Mullings, the opposition was overruled and the Bill passed the House of Commons with a very insufficient modifica. tion of some of its clauses.

vidual trustees. 5th. That if the evils suggested did in fact exist, this measure was not calculated to remedy them. 6th. Even if this would introduce new and additional evils of Bill could remedy all or any of these evils, it much greater magnitude. And finally, that the measure, involving such principles, ought not to be introduced by a private Bill, but if ParOne of our weekly contemporaries re-liament thought fit to alter the established law joices at the success which has attended of the country, it should be done after due deliberation and as a public measure.

1 See L. O. April 15.

VOL. XLVIII. No. 1,371.

2 Law Times, June 10.

H

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Professional Opposition to Bills in Parliament.

Having these cogent objections to the others as executors and trustees, is peBill, it would have been insanity to abandon culiarly offensive and unjust. Amongst the them and depend on the argument against 10,000 members of the Profession, how exgranting a monopoly to the South Sea ceedingly rare are the instances of defalcaCompany, its solicitors and officers. The tion? When Mr. George Gregory, one of objections, indeed, are not confined to this the witnesses, was questioned as to his one company, but to all joint-stock com- knowledge of the failure of some of his panies; and if the Bill had passed and suc- brethren, he truly and emphatically said, cess had followed, there would soon have been" I think I am bound to say of my own a host of them. A second company was al- Profession, and I am glad that I have an ready in the field, which, in order, as they opportunity of saying it, that I think you supposed, to conciliate the Profession, held will find less instances of breach of trust out the promise that solicitors, who were and confidence in that Profession, than you shareholders in the company, should be will find in any other body of men of the eligible to participate in the extensive law same and of similar responsibility." Mr. business which would arise out of the ad- Selwyn also eloquently repelled the imputaministration of trusts or the office of exe- tion of interested motives attempted to be cutors! fastened on the Law Society.3

Our opinion is, that the Profession should When we consider the temptations to not shrink from an appeal to the Legisla- which professional men are exposed, and ture, whenever they have public grounds to the opportunity they have of concealing their state or the interest of their clients to advo- misdeeds, it is eminently to their credit that cate, and that they should not be deterred so few cases of misconduct arise. We may, by the imputations which may be cast upon however, admit that the public has a right them of seeking to promote their own in- to expect at their hands undeviating inteterests. They may justly maintain that grity. The fullest confidence is reposed in the real interests of the Public and the them. They are taught highly to appreciProfession are identical; and that the due ate the honourable nature of their profesadministration of justice cannot be secured sional duty; they act under the watchful without a competent and respectable body of practitioners; but it would be in vain to rest the objection to an alteration in the Law on the ground alone of professional

interests.

eyes of their brethren, the scrutiny of the Bar, and the supervision of our venerated Judges. Habits thus formed are great helps in the hour of temptation, and the warm esteem and approval which a life of As an instance of this course of proceed- integrity is sure to gain, may well operate ing, we may refer to the stand made by the in sustaining them in their honourable Law Society, supported by their brethren course. We claim for them no exemption in the country, on the Stamp Duties' Bill from human infirmity, but we maintain of 1850. The alterations which were ef- that they faithfully discharge their duties, fected in the scale of duties were peculiarly and that it is altogether unnecessary, and beneficial to the Solicitors, by the increased would be unjust and impolitic to supersede number of leases and conveyances which them by official executors and trustees, were called for, but the amendment of the even if the diligence and responsibility of scale was effected for the good of the com- such officers were guarateed by the governmunity, and the result was, that whilst it ment. relieved thousands from the previously oppressive burden of large stamp duties, the We trust we shall hear no more of these revenue suffered comparatively little, be- joint-stock projects,—of governors, sub and cause of the vast increase in the number of deputy-governors, directors, executive councils, or wholesale solicitors, for the manage

transactions.

With regard to the appointment of official ment of the private affairs of families and trustees, although not so objectionable as individuals. Let them exercise their injoint stock companies, we think the sugges- genuity, and apply their capital in great tion altogether uncalled for. It is an un- public undertakings which require the asfounded slander on the relations and friends sociation of large numbers, and the division of testators that they cannot be trusted. of risk amongst many shareholders. The occasional instances of breach of trust do not justify an alteration of the law. And the suggestion in regard to the failure of solicitors who are often associated with

See p. 118, post.

།

Rejection of the Executor and Trustee Bill.

EXECUTOR AND TRUSTEE BILL.

WE gave last week a full report of the speech of Mr. Selwyn against the South Sea Company's Arrangement and Trust Bill. We are now enabled to lay before our readers the objections to the Executor and Trustee Bill, comprised in Mr. Selwyn's answer to the arguments of Mr. Clark, with comments on the evidence adduced in support of this second Bill. After some introductory remarks, Mr. Selwyn said—

115

tenant for life has been to the trustees to ask them to commit a breach of trust, and the trustees refuse, the tenant for life says, 'If you do not, I know two or three who will,' and the old trustees know that the new trustees are appointed for that precise purpose, and they hand over the money to them knowing it will be misapplied, then the old trustees continue liable."

Lord St. Leonards :-" That is quite right, -that is not a new decision."

་

Mr. Selwyn "That is a most useful rule of law; and that is the very thing that will be evaded by the institution of this company; "This second Bill affords an instance of because, instead of going to the old trustees, that sort of competition to which I adverted on and saying, 'We have found somebody else a former occasion. Very properly disclaiming who will do it,' they will say, 'Transfer it to any intention of executing the very difficult this company and you are indemnified.' And office of administering the estates of testators, all that the tenants for life will have to do is, the South Sea Company acknowledge, by the to find out which of these companies is most Bill which they propose to your lordships, the obliging, and least scrupulous, and the busiincompetence of such a body as theirs, or, in-ness will be transferred to them, and the deed, any corporation, to execute such trusts. breach of trust will take place. Also, there is The second company, my lords, is a little the danger which will be involved in every title bolder. They come and tell your lordships, that, although the first company, with Mr. Franks and eight or ten legal gentlemen upon their board, do not think themselves competent, yet we, the directors of the second company say, 'do feel ourselves competent, and we hope to make it a principal part of our business.' I use that, to show the extent of the competition that would be likely to arise, if you once give your deliberate sanction to such companies, each would be going one step beyond his neighbour, and the result would be, that that one which is the most accommodating, and the least regardful of the objects of the trust, that company would be most in favour with tenants for life, and would be the company who would get the most business. They would go on trading against each other, and, ultimately, it would become like a race in committing breaches of trust, and they would come to guarantee themselves, in fact, against that. Your lordships will observe, that in all these Bills, there is introduced the same provision; that if the trustees merely transfer the property to this company, they are to be indemnified. That is the foundation of both the measures. Then we shall have the company offering what we have heard from one of the witnesses, commissions to solicitors and other parties, they will offer more inducements, by way of loans, or investments, to tenants for life; they will get the money by some means or other in their hand, and then, by these acts which you are asked to sanction, the trustees are to be absolutely and finally indemnified.

"Now, my lords, it is with reference to that danger that those decisions, which have been the subject of the question which has been put, more than once by a noble lord, will become so important; namely, the question as to how far, upon the appointment of new trustees, the Courts go into the question of acts of former trustees. I think that the decision which the noble lord referred to is this: that where a

where real property comes within the administration of one of these companies. Because, my lords, in the present state of the law, all that the person investigating the title has to see is, that the new trustees are appointed in pursuance of the powers contained in the deed creating the trust. But when we look at each of these two Bills, the framer has found it necessary to provide in all cases for the intervention of the Court of Chancery, or some other means, to see that those persons who are not sui juris shall be properly represented. Then, if so, if one of these two companies are appointed new trustees, and there is a transfer to them and afterwards a sale, on every occasion, it will be necessary to state how far that section of the Act of Parliament has been carried out. The purchaser would have to consider, first, who are all the persons interested; next, he would have to consider whether they are sui juris; and then, whether they were properly represented or not before the Court. Every one of those questions must be decided before you can safely take the title when the property has once passed through this company. Mr. Bellenden Ker has told us something further. He says,― As I understand it, all persons who are unborn who might by possibility take an interest, ought to be represented by the Court of Chancery.'

"Another difficulty would be thrown upon the person taking the title. He would say, 'I see there are tenants in tail and certain children, but there was another class of children, were they represented before the Court, and were they properly represented?' I think that your lordships would introduce the greatest possible difficulty and complication in titles, if you were to sanction such a measure as this. It is one which must inevitably arise in every case in which property or land is transferred to this company, and your lordships have heard to what an extent it is proposed to transfer property to this company.

116

sive as

Rejection of the Executor and Trustee ill.

"With reference to the difficulty of obtain- appoint this corporation; but the Vice-Chaning trustees, I think all the evidence upon that cellor said,-"The absence of that individual subject brought forward to day is as inconclu- and personal responsibility is so fatal to such a that which your lordships heard proposition, that though I know that applicabefore. I went through the evidence on the tions must be made to the Court of Chancery, former occasion, and therefore I do not go and although I admit that there is no objection through it now. But I would say this, that to the individuals now constituting the corpoeven if such difficulties do arise, and even ration, I will, if you think fit, appoint the indiadmitting the principle that the law does viduals who compose the corporation, but I not prevent trustees from accepting remu- will not appoint the corporation itself.' That, neration; can it be said that there would my lords, was his decision,-and that was the be any difficulty in finding firms such as decision of a Vice Chancellor having the greatQuilter and Company, who we know do est possible experience, and in a much stronger undertake to wind up the affairs of trus-case than that which is brought before you of tees, and who act as individuals under private trusts; because it was in its nature a that individual and personal responsibility perpetual and continuing trust, in which there which is so necessary an ingredient. There was no power in any person to appoint new is no doubt that persons could be found who trustees, and therefore necessitating, on every would undertake these trusts, without the ne- occasion where the trustees were reduced to cessity of having a joint-stock company at all. five, a reference to the Court of Chancery to But Mr. Ker has also said, that there is no ob- appoint new trustees. Neither of those cases jection to a corporation being trustees; and that would occur in private trusts; because, in the objection that I have mentioned as having many cases, there is no occasion to appoint been sanctioned by the Legislature with regard new trustees, and even where there is, there is to municipal corporations where they were a simple provision in a late Act of Parliament, trustees for charity, was an objection of a po- namely, for the appointment of trustees, at litical nature, and arose simply from the malpractices of these companies in having made use of them as an engine for purely political purposes. That was answered by one of the noble lords, who said, that that was not the principal ground of objection; the real objection was the obvious inattention and irregularity in the administration of the trusts of which those corporations, almost without exception, had been guilty, and the inevitable tendency in all corporations and bodies to leave their affairs to some one person, which, after a lapse of time, became mismanaged.

"But, my lords, it is very curious; it was only yesterday a case came before one of the Vice-Chancellors of the greatest possible experience, not only as having had a large busi ness himself as a barrister, but also as having filled the office of Master in that Court, and now filling the office of senior Vice-Chancellor. I need not follow the example of Mr. Ker, in quoting from the report in the newspaper; but I was present in Court myself, and I can state the case was a charity which was perpetual, and a scheme was brought forward, among other things, to settle the manner in which new trustees should be appointed. It appears that it had been administered by a corporation, the Governors of Crediton. It was proposed that the corporation should be appointed trustees; upon which the Vice-Chancellor expressed, although in better terms than I did on the former occasion, the same objection-namely, the absence of personal and individual responsibility, which was of the essence of the trust, and stated that a corporation could not be made liable in such a manner-the answer was made precisely as here: this is a perpetual charity, and you will have continually applications to appoint new trustees; whereas the expense of all that will be avoided if you will

the expense, as one of the witnesses told your lordships, of a skin of parchment, or even less.

"But, my lords, even if the noble lord who answered that objection as to municipal corporations, and if the Vice-Chancellor Kindersley were completely wrong; and if the objections to corporations being trustees is to be confined simply to their having abused it for political purposes, what is to prevent similar abuses in the case of any of these corporations

be

what is to prevent persons in the South Sea Company buying up stock for political purposes, and using the enormous power they will obtain for this purpose, just as much as any municipal corporation, and much more, cause the trustees of those municipal corpora tions are appointed by election entirely by their fellow-citizens, and they are not continuing bodies, whereas, these directors are to be continued or removed by the vote of their own shareholders, and there is nothing to prevent any political party purchasing stock and obtaining the appointment of directors, using all the powers they acquire for the same political purposes, which was found so objectionable in the case of municipal corporations; but then, my learned friend, Mr. Clark, says the remedy for all that is very easy, because they propose by the Bill, as they must, that they are all to be subject to the Court of Chancery. The answer to that is. So were the old corporations; for the books are full of suits, showing injuries done by them, and constant and great breaches of trust which were remedied in the Court of Chancery, but the Legislature did not think that sufficient.

"Then, my lords, I would only refer to the questions which one of your lordships put to my friend, Mr. Clark, at the conclusion of his address, and which he was entirely unable to answer. Your lordships will bear in mind it was then suggested to him in what manner

Rejection of the Executor and Trustee Bill.

117

he could propose to meet that objection, which they bring in, proposes that that should be the arose upon the evidence of Sir John Patteson mode of operation, for your lordships will find and some of the other witnesses, namely, by the 31st section the commission is to be that it was essential that there should be a paid, and such commission may be agreed board of management who would give their upon between the executive council and the individual personal attendance to the matter, settlor, testator, or next of kin of any intestate; and who would not allow it to get into the hands or in case no such agreement is made, then of one person. What answer have we had to such commission shall be after such rate as that? Have we had any in the evidence of shall at the time of the acceptance by the comto-day? I should suggest to your lordships to pany of any trust, be actually provided by any take the Bill and look at the names here pro- bye-law of the company, or general resolution posed. Take, for instance, the first name, the or regulation of the executive council sanctioned Earl of Zetland-it is no extravagance to say by the Board of Trade.' Then, by the 32nd that that name may be considered as purely clause of this proposed company, your lordships ornamental. Take next the name of my learned will find-With respect to any trusts transfriend, Mr. Headlam, an active Member of Par-ferred from other trustees to the company, the liament, a Queen's Counsel, in practice at the commission in addition to such costs, charges, Bar, and also filling the high ecclesiastical office of Vice-Chancellor of the Diocese of Ripon. Is it possible for him to give his undivided attention? We have, amongst the rest, Mr. Clark himself. Your lordships have heard with what eloquence and ability he has argued the case of his society. I will leave your lordships to judge whether it is likely that the person whom you so heard will have time now to go into the City and manage the affairs of such a company as this. The same with the others. There is an entire absence of that provision which ought to be made to obviate the difficulty suggested by Sir John Patteson, which, if not got over, he says, will be fatal to the success of such a company.

"The next case my learned friend, Mr. Clark, put was, that of solicitors intrusted by a number of poor persons with a large amount of their savings, and misappropriating them, that is entirely beside the point which you have now to consider. Those persons would not have a trust deed or any trust to be continuous and to be administered by a corporation. They merely chose a solicitor instead of going to a savings' bank, probably tempted by an offer of a little higher interest. Instead of depositing their money with a savings' bank, they went to a solicitor; but in the case put of those solicitors who misappropriated the funds entrusted to them, would those persons have gone to a joint-stock company, who would at once have mulcted them of one per cent., when their principal object was, that they might have their money more readily at hand without those incumbrances which the Savings' Bank Act has imposed upon persons who deposit their money. My lords, the case is entirely inapplicable to the present.

and expenses incurred by them in the administration of the trusts reposed in them as trustees or executors, are in the like cases in ordinary, entitled to be reimbursed, shall be of such amount as shall be agreed upon between the ecclesiastical council and the persons beneficially interested, if sui juris, or if incapacitated, as shall be approved by the said Court.' I think your lordships will find that is a most material provision, because, in fact, in every case of this kind, you are first to have the expense of an application to the Court for the purpose of considering whether the transfer ought to be made at all-that would be the first expense necessary. You are then by the provisions of the Act, to have a deed declaring the trusts in the company. That is the second expense. Then, thirdly, under the 32nd clause there is to be in all cases where there is a person not sui juris, another application to the Court to determine what is to be the amount of commission; then there will remain a fourth expense, the commission itself; therefore, this scheme for saving expense, and rendering things more easy, would necessitate those four things-first, the transfer; second, the deed; third, the application to the Court to determine the amount of commission; and fourth, the commission itself.

"Now, when you come to consider the expense of those things-that the Court must be informed of all the circumstances of the trust-although the application may be made in a summary way within that Act before the Vice-Chancellor, it will be his duty fully to inform himself of all the circumstances of the trust, and to see whether it is rightwhether all those who are not sui juris, or those who are not born, should have their proThen, with respect to the mode in which the perty mulcted. The very investigation must company were to be paid for the services which necessarily involve considerable expense. were rendered, your lordships will recollect, my can foresee that what was intended was that learned friend, Mr. Clark, differed entirely from which my learned friend, Mr. Clark, candidly the views of Mr. Franks. He considers that admitted. He says, not merely for the purit will be much more beneficial, instead of de-pose of the public, but also for the purpose of ducting the one per cent., as Mr. Franks proposed in the outset or at the beginning of the trust, that a sum of money to be decided upon afterwards, should be deducted when the money is ultimately distributed; and accordingly, your lordships will find the Bill which

I

these applications, your lordships' names are to be made use of, and it is to be said, 'All these objections were taken before a Committee, and such a committee, composed of such persons as we are now before, have sanctioned this; therefore, of course, the Vice