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OCT. 20, 1855.]
The Attorneys' Benevolent Institution.
It is matter of congratulation and encou-and that the organization would necessarily ragement that the Medical Profession has be more complicated and difficult if it comsucceeded in establishing a noble Institution prised the Provincial Profession. at Epsom, which was commenced in 1851, and the building being recently completed, is now open for carrying into effect the several objects of the "Medical Benevolent College," which are thus described :
1. "An Asylum, in which 100 pensioners, who must be duly qualified medical men, or their widows (possessing incomes of at least 157. a year), shall be provided with three furnished rooms each, and with such additional assistance and accommodation as the funds may permit. The Council, however, confidently hope, that the society will be enabled wholly to support some few deserving persons not possessed of the required income.
2. A School, in which a liberal education
will be given to 100 boys, the sons of duly qualified medical men; three-fourths of whom will pay 301. a year each for education, board, lodging, and washing: while the rest will be orphans educated and maintained entirely at the expense of the society.
3. "To grant Annuities, and occasional pecuniary assistance to distressed members of the medical Profession or their families, as the funds of the College may from time to time permit."
The Clergy also, besides the old Society for "the Sons of the Clergy," have of late projected a benevolent Institution for the relief of Curates who may be disabled by age or infirmity from the discharge of their clerical duties, or may be unappointed to any curacy. Their plan assumes the form of an insurance society,- the subscribers to which are entitled to an annuity when otherwise unprovided for or disabled.
We are in possession of some hints for the improvement of the plan of the Attorneys' Benevolent Institution-part of which we now proceed to lay before our readers for their consideration:
On the other hand, we admit that it is desirable to unite the entire body in the proposed good work, and it is conceived that there would be difficulties in drawing the line with regard to London Practitioners entitled to the benefit of the Institution, inasmuch as many changes of residence take place: some coming from the country to town, and others leaving town for the country.
This, we presume, will be a question submitted for the determination of the General Meeting, which is intended to be called. Perhaps it may be expedient to communicate with the several Provincial Law Societies, and ascertain their opinion on the expediency of joining the whole Profession in furtherance of the proposed Institution.
2. We understand that some who zealously support the general measure, have objected to the proposed building of an Asylum or Hospital for the residence of the Pensioners,-conceiving that by whatever name it might be called, it would partake of the nature of au almshouse, which they deem derogatory to professional men. Further, that it would be very difficult to suit the tastes and dispositions of the inmates, and that there would be danger of dispute and contention. And lastly, that the land and building would absorb a large amount of the donations, and the expense of management, including officers and servants, would incumber the annual income and diminish the number of pensioners entitled to relief.
In answer to these objections, it is urged 1. It has been urged that the establish- that if the In-Pensioners are strictly conment should not be confined to Attorneys fined (as indeed they must be) to the reand Solicitors who have practised in the spectable though unfortunate members of Metropolis, but that it should be extended the Profession, the establishment would to the whole of England and Wales. This not degenerate into an ordinary almsis, doubtless, a very important point in the house. The Pensioners would be gentleoutset and constitution of the Society. In men who have associated in professional favour of its being limited to London, it practice with their more successful bremay be said that the scheme will be more thren, and the rules and regulations of easily and efficiently managed if so confined, the House would preserve order and re
persons who are not, or have not been, members of the Institution. The cases of those who have contributed whilst able, but have ceased from inability to continue their subseriptions, will, no doubt, be entitled to primary consideration.
5. As to the "ways and means" for establishing and supporting the Institution, we are informed that a considerable number of Solicitors have promised 100 guineas each, and some a larger donation. There are also several who will subscribe five guineas a year, others two, and the rest
gularity:so that the community would, to a certain extent, resemble the Fellows of a College, having a good library to resort to, and each having chambers of his own. The pensions will be received (especially by those who have contributed to the funds), as a matter of right and not of mere charity. The admission into the Institution will, indeed, indicate the good character and conduet of the pensioner, as none other will be elected; the rules in this respect will tend to promote the respectability of the Profession, and the pensioners will be elected by their brethren, to whom they will be one, besides donations to the Building personally known. Some of the subscribers, Fund. we understand, are disposed to contribute We conceive, therefore, that by due exlargely towards this part of the fund, and ertion there can be no doubt of success, and consider a building—“a local habitation”we most heartily recommend the plan to to be essential to the success of the design. the favourable consideration of our readers. 3. We have been asked whether the We think that such an establishment is donors and subscribers to the Institution pressingly needed, and will reflect credit on will consist of Attorneys and Solicitors its promoters and the Profession in general. only, or whether other branches of the Profession,-the Bench, the Bar, and the Proctors,--will be invited to contribute, as they do to the funds of the United Law Clerks' Society? So far as we can learn the views of the promoters of the Institution, the subscription will be confined to the Attorneys and Solicitors who have prac tised, or are practising, within the limits of the metropolis; and, considering their number and wealth, it is anticipated that a sufficient fund, economically managed, will be raised to meet most of, if not all, the ing claims of the intended Pensioners.
The names of the Provisional Committee, and the Subscribers who have already signified their approval, are stated in our Advertisement pages.
ALTERATIONS IN THE LAW.
SUGGESTIONS OF ATTORNEYS AND SO
THE various projects for altering the jurisdiction and practice of the Courts of Law and Equity, the Law of Property, and the Practice of Conveyancing, continue to demand the constant attention of the Profession. Though some useful changes have been effected, they have been accompanied by much inconvenience and injury, as well to the Suitors as the Profession;-many alterations have been injudiciously made, and many improvements are still required. It behoves the members of the Profession, therefore, to unite in guiding the future measures for correcting real abuses, and satisfying the demands for further reform, so far as they are consistent with the due administration of justice.
4. Inquiry has also been made, "whether the relief should be limited to those who have subscribed to the funds of the Institution?" Of course, in the first instance, the most deserving and pressing cases would be considered with a view to immediate relief. It may be presumed that very few, if any, of the donors and subscribers will require assistance for some years to come; but hereafter, as applications are made, it may be The Bar is ably represented by several presumed that attention will first be given Quarterly and Weekly Journals, and it is mato those who have contributed to the fund. nifestly just and expedient that the Attorneys If the income should permit it, probably an and Solicitors should possess an Organ devoted annual sum will he devoted to the aid of to their peculiar interests. The LEGAL OB
OCT. 20, 1855.]
Alterations in the Law.-Costs of a Solicitor-Trustee.
SERVER has been established at the instance, | opposition to each other. A trustee in such a and is conducted under the supervision, of So- situation has a duty to perform and a private licitors of experience, for the purpose of sup-interest. In some cases, if the costs now plying this desideratum and affording the means asked for were put into the scale, private inof ascertaining the sentiments of the Members terest would kick the beam." of their Branch of the Profession, and of diffusing a knowledge of all subjects bearing on their welfare.
The Editor deems it essential again to call upon his Brethren to consider their present position and future prospects, and to communicate their suggestions for the promotion of their general benefit and advantage. It is of great importance that the opinions of Attorneys and Solicitors, as well in all parts of the Country as in Town, should be collected upon the various important topics which affect the position and welfare of their Branch of the Profession.
Letters addressed to "The Editor of the Legal Observer and Solicitors' Journal," will receive immediate attention.
The cases do not seem to have been decided with any reference to the intention of the authors of the trust. Indeed, in a great majority of the cases which have come before the Courts, it was well known that the real intention and expectation of the parties was, that the Solicitor-trustee should continue to act for the trust estate on the same terms of remuneration as if he were not himself a trustee.
Are we to understand, then, that public policy or the policy of the law requires that a Solicitor-trustee shall not be allowed to receive remuneration for his professional services? If such be the policy of the law, the Courts would not give effect to express stipu lations in contravention of it. But the Courts do. For where, as is now frequently done, the
COSTS OF A SOLICITOR-TRUSTEE. instrument creating the trust expressly pro
THERE are few subjects affecting the interests of Solicitors more urgently requiring attention than the rule which prohibits a Solicitor who is a trustee, and even a partnership of Solicitors, one of whom is a trustee, from making the usual professional charges in relation to the affairs of the trust.
Several Judges have lamented that the rule should ever have been established, and denounced it as unjust to Solicitors, but felt themselves precluded by the early decisions from laying down a different rule.
What then is the foundation of a rule thus inflexible and thus disapproved of, and how is it to be altered? Altered it certainly should be if unjust.
The rule has been stated by several Judges to be founded "on the principle that a trustee shall not be allowed to make a profit of his office of trustee" (See Craddock v. Piper, 19 L. J., N. S., Chan. 107; Lincoln v. Windsor, 20 L. J., N. S., Ch. 531; Broughton v. Broughton, 24 L, J., N. S., Ch. 190, and Broughton v. White, Leg. Obs. July 1, 1855).
vides that professional charges may be made, the Courts support such a clause.
This shows the inconsistency of the rule; for why should not the intention of the parties, whether expressed or to be inferred, be equally recognized?
The sound and just rule would be, that in all cases where the trust instrument does not indicate a contrary intention, the Solicitortrustee shall be at liberty to make the same professional charges as if he were not himself a trustee.
How then are we to procure an alteration of the present rule? It seems to be admitted by the Judges that they are completely bound by the decisions, and that nothing but an Act of Parliament can accomplish the desired alteration of the law, and I think, therefore, that an effort should be made in the next Session of Parliament to obtain an Act for this purpose, which would not, I believe, encounter any very formidable opposition.
It may be said, that the simplest remedy is to exclude the operation of the present rule by inserting in all trust instruments an express In Fraser v. Palmer, 4 Younge & Coll. 517, authority to make the ordinary professional Mr. Baron Alderson says, "The principle is charges-no doubt the clause where inserted that the estate is to be protected by the un- would secure all the Solicitor-trustee is entitled biassed judgment of the trustee. Can a So-to-but it must be borne in mind that a great licitor who is a trustee be allowed to make a majority of the trusts now in course of adminiprofit of the contest in which the estate is in-stration have been created under documents volved? If so he would have two interests in not containing that clause, and there must be
a great number of wills of persons still living in which the clause is not inserted. In many cases the Solicitor feels a delicacy in apprising the testator or settlor of the necessity of inserting the clause, and omits it rather than incur the imputation that he is thinking of
Besides, it often happens that the Solicitor was not one of the original trustees, but is selected for one on an appointment of new trustees being made.
Pollock, L.C.B., said:
"The first point is, was there a good delivery of the bills of costs? That turns on the question whether the delivering of the bills to the person intended to be charged in an envelope addressed to him on the outside is a sufficient compliance with the Statute 6 & 7 Vict. c. 73. We are unanimously of opinion that it is. It may be that cases have been decided that apparently would lead to a different be decided upon the circumstances of the parresult, but the question in every instance must ticular case, whether the bill has been deliverIt must not be supposed that this is a sub-ed in pursuance of what the Statute requires. ject of little importance to Solicitors generally, According to the case of Manning v. Glyn, 1 —it is by no means a matter of partial interest. I venture to say that a very large proportion of the Solicitors are trustees under some will, settlement, or mortgage, or will be so at some time; and nearly every volume of Equity Reports furnishes an instance of the injustice done by the present rule.
May we not expect that this subject will receive consideration by the Executive of the Incorporated Law Society and the Metropoli
tan and Provincial Association ?
Jones' Exch. Rep. (Irish) 513, it would not be sufficient to deliver to the party personally a bill containing the items and charges and perfect in every other respect, unless the bill also contained a statement that the person to whom it was delivered was intended to be charged. But that is not this case. It is admitted that if the envelope were part of the letter and one piece of paper with it, that it would be sufficient. I think that we must consider that the envelope and inclosure are to be read together as one, and that the delivery of the bill in the envelope addressed to the defendant on the outside is as good as if there had been an address at the head of the bill." Lucas v. Roberts, 24 Law Journ., N. S., Exch., 227.
The zeal which they have alike displayed in all that relates to the Profession, certainly encourages the hope that they will not be slow to grapple with so palpable a defect in our REMUNERATION OF SOLICITORS. law.
Liverpool, 15th October.
LAW OF ATTORNEYS AND SO
THE mode in which Solicitors are now paid gives them an interest in opposing improveDELIVERY OF BILL OF COSTS, SUFFI- ment, and in continuing antiquated forms and
IN an action by an attorney to recover the amount of his bills of costs, it appeared that they were headed "In the matter of the bankruptcy of John Robinson," and were signed by the plaintiff at the end, as follows: "This is the bill of Walmesley and Lucas. William Lucas, surviving partner of the said firm of Walmesley and Lucas." These were inclosed, without any letter or note, in an envelope addressed to "the Executors of the late Mr. John Roberts," upon whose guarantee the proceedings were taken, and were left by the plaintiff's clerk with a servant at the residence of the defendant, Roberts. There was no mention of the names of the defendants or of their testator in the heading or any other part of the bill. The Judge of the County Court of Wem, Shropshire, having decided that there was a sufficient delivery within the 6 & 7 Vict. c. 73, s. 37, this appeal was presented.
technical modes of proceeding; in fact, to use the words of the late Lord Langdale, it makes his own defence, to put his client to very great it "almost compulsory upon the Solicitor, in and unnecessary expense, for the purpose of obtaining some remuneration for services in respect of which he cannot otherwise make a lawful demand." Such a system, so far as it is allowed to influence the Profession, tends to separate the interest of the client from that of the Solicitor in every stage of his employment. On the one hand, the interest of the client is to have his business completed as quickly and with as few technical forms as possible; on the other, the interest of the Solicitor is to create delay and to multiply and lengthen forms, in order that by these means he may be paid for services which otherwise would be remunerated inadequately, if at all.
It is now nearly 15 years since the Solicitors remuneration which they feel to be so objeccommenced their efforts to alter a system of tionable. In December, 1840, at the desire of Lord Langdale (then Master of the Rolls and their official chief), they drew up some sug'
OCT. 20, 1855.]
Remuneration of Solicitors.`
ness under the summary control of the Judges, was the price which the Solicitors agreed to pay for introducing the principle of "quantum meruit" into the rules for the taxation of costs. The price was paid by the Solicitors, but that which they were to have received in return has been withheld.
gestions for improving the system of remune- veyancing business, though partly regulated by ration. The principal of these suggestions was professional usage, were not liable to taxation. the constitution of a Taxing Board invested The rule of quantum meruit was the only legal with a most extensive and summary jurisdic- test; and in case of dispute, it was decided by tion, and with discretion to apportion remune- a jury. The transfer of the power of the jury ration according to the nature and importance to the Taxing Masters, and placing the busi of the business transacted, to the skill and labour bestowed upon it, and to the responsibility incurred by the Solicitor. These views met the entire approbation of Lord Langdale, and, it is understood, of Lord Lyndhurst, the then Lord Chancellor; and, with the concurrence and assistance of the Solicitors the Six Clerks' Office was abolished, the office of The Act having been passed, the Solicitors, Taxing Master was instituted, and the charges on the 12th October, 1843, wrote to his lordof Solicitors, for conveyancing business, were ship, requesting that General Orders should be made liable to taxation, by which it was de-prepared to give effect to the scheme which had signed that the improved discretionary system been proposed, and received the following anintended to be introduced, should be made swer :uniform and applicable to every kind of legal business, and that all the professional acts of Solicitors should be under the summary control of the Judges. The communications with Lord Langdale, recently printed by the Incorporated Law Society, fully bear out the foregoing statement, and show that, from the first, his lordship assured the Solicitors, that "if it should appear that any important improvement in the practice and proceedings of the Court would injuriously affect the fair emoluments of professional men," they might rely on the Court for giving "just remuneration to Counsel and Solicitors for services truly rendered by them to their clients."
"14th October, 1843.
"SIR,-I have received your letter, dated the 12th instant, and I will take the earliest opportunity of communicating with the Taxing Masters upon the important subject to which it relates; and, having first communicated with them, I will submit such observations as may seem proper to the Lord Chancellor.
Concurrently with the circumstances already referred to, the Equity Committee of the InAfter the establishment of the Board of Tax- corporated Law Society were occupied through ing Masters, Lord Langdale addressed to them the years 1841, '42, and '43, in preparing suga letter (dated 10th November, 1842), request-gestions for Lord Langdale and the Judges, ing them to report to him on the system of and in assisting to draw up the numerous Gecosts, "with a view, if practicable, of reducing neral Orders and Acts of Parliament then made bills of costs to a true statement of services ac- | for the improvement of the Court. Among tually performed, and of charges constituting a fair and just remuneration for the services so stated." In this letter his lordship points out forcibly, "that the system gives to the Solicitor, and every other legal practitioner, a direct interest to increase the length of documents, and the number of steps or proceedings in the transaction of business;" and "has in many cases made it almost compulsory upon the Solicitor, in his own defence, to put his client to very great and unnecessary expense, for the purpose of obtaining some remuneration for services in respect of which he cannot otherwise make a lawful demand." A copy of this letter Lord Langdale transmitted to the Incorporated Law Society, but they are not aware that any report was ever made by the Taxing Masters in accordance with his lordship's di
other matters which necessarily came under consideration was the mode of dealing with the Masters' offices: and though the Committee came to no conjoint action on that subject, yet one of the members drew up and published (in 1841), and distributed among all the Judges and leading members of the Profession a plan for abolishing the offices and transferring the business into the Judges' Chambers, and for establishing a Chamber jurisdiction. This scheme (together with the almost insuperable obstacles presented to any permanent improvement by the present system of remuneration) was strongly pressed by the Solicitors on the attention of the Committee of the House of Lords, which sat on the Masters in Equity Jurisdiction Bill in 1851. Lord Brougham, at the close of the inquiry, tendered his own evidence to the Committee, and thus stated the In full reliance on the intention of the Judges conclusion at which he had arrived :-After reto carry out the principle of remuneration in- ferring to the divided responsibility which the dicated in Lord Langdale's letter, the Solicitors system of Masters created, as one great cause assisted in preparing the Act for Consolidating of delay and expense in the Court, he expressthe Law of Attorneys, which subjected convey-ed himself as follows," My opinion is clear ancing charges to taxation, and in getting the (with the whole of the evidence) that the Bill passed through Parliament in the next other cause is the perfectly faulty mode of year, 1843. remunerating professional men, Solicitors especially; but I do not except counsel. This
Previously to this Act the charges for con