The Legal Observer,




-"Still attorneyed at your service.”—Shakespeare.

SATURDAY, MAY 5, 1855.


Court in the metropolis, which will extend over the whole kingdom; and there Ar the commencement of a new Volume, can be no doubt, we presume, that it it may be proper to notice some of the prin- would be a great improvement in the law, cipal projects of Law Reform. They con- and a material saving to the public in time sist of the Testamentary Jurisdiction Bill; and expense, if administrations and pro-the Executor and Trustee Bill;-the bates were granted at one place, and their Bills of Exchange Bills;-the Despatch of operation extended over the whole country, Business in the Court of Chancery;-the for the purpose both of readily ascertaining Charitable Trusts' Act Extension;-the Ap- where probates and administrations were pointment of Public Prosecutors and District Agents; and, though last not least, the Remuneration of Solicitors.


granted, and where they may be made available for the recovery of property in all Courts and places. It is true that the comparatively As to the Testamentary Jurisdiction Bill, small number of Proctors and the better sualthough it appeared to be at first favourably pervision of them, compared with the 3,000 received by the Profession, a considerable London Attorneys, and limited as they are change of opinion has taken place amongst to one class of business, may possibly enseveral Solicitors on the subject of the abo- sure a greater degree of accuracy than if lition of the Ecclesiastical Courts. The the business were thrown open to the whole Proctors, we understand, now propose that in lieu of the Solicitor General's plan, the It must be admitted, that the long expeCourt should be converted into a Queen's rience which the Proctors in London have Court of Probate, confined exclusively to had in the transaction of the business of the Proctors in common form business, but the Courts at Doctors' Commons, must admitting the Solicitors to practise in con- afford them considerable facilities in the tentious business. It is also intimated that despatch of business and in detecting irrethe prohibitory enactment by which proc- gularities or attempts at fraud. The comtors were not allowed to act as agents for mon form business divided amongst several Solicitors will be willingly repealed, and a thousand Solicitors would add but little to participation in the business at Doctors' their remuneration. Supposing, however, Commons take place where the Solicitor in- that a satisfactory arrangement can be eftroduces the business and is responsible for payment in like manner as between town and country Solicitors.

fected with the practitioners in London, there will be no small difficulty to contend with in regard to the compensation to be Whether this will meet the views or ex- made to the officers and practitioners in pectations of the larger branch of the Pro- provincial Courts, in some of which the fession, or whether the Government will emoluments are very large. sanction the compromise, we are not pre- On the other hand, there is a tendency pared to say; but we deem it right to place to consolidate the Courts and offices, to both sides of the question before our readers. bring them within one general system, and It is understood, amongst other re- to render the mode of proceeding as far as forms, that there will be one Probate practicable simple and uniform. As the VOL. L. No. 1,417.


Attorneys and Solicitors find no difficulty 20s. If so, no Attorney can be engaged in in practising in all the Courts of Law and the proceedings. If the Notary and the Equity, it is contended that they would Registrar will be content with a few shillings, readily make themselves masters of the the holder of the bill will have the trouble Testamentary Jurisdiction, and any prac- himself, and cannot charge his loss of time tical difficulties in the outset would be to the defaulter. If the business be proreadily removed, and the improved forms perly and carefully done by professional of proceeding, it is anticipated, would soon men, there can be no saving of expense comwork well. The officers of the Court would, pared with the process in the Common Law of course, be on the alert to detect any Courts. Then the costs of proceeding to irregularity, and require strict evidence of judgment and execution must be conthe papers brought into the office, either sidered. These steps must be taken by an for administration or probate. Attorney, unless it is intended to allow any unqualified person to act as agent for the holder of the bill.

It is contended, of course, that the safeguard which requires every probate and administration to be obtained by a Proctor should be extended to Solicitors, who would be answerable for all the due formalities, according to the practice now adopted at Doctors' Commons, or as it may be further improved.

These hints at a reform in Doctors' Commons, we should like to see expanded into a distinct plan, of which the Profession might clearly and distinctly judge.

With respect to the Charitable Trusts Bill, it seems probable, if that measure be adopted, that it will go far to establish a species of new Court, subject to appeal to the Court of Chancery. Care should be taken that a regular body of practitioners should attend the Board, and that rules and regulations should be prepared for the safe and methodical conduct of the business.

The Public Prosecutors' Bill proposes a very remarkable alteration in the administration of the Criminal Law. Public Prosecutors are to be appointed, being Barristers of a certain standing, with other Barristers to prepare and advocate prosecutions; and then district agents are to act under them as Attorneys, selected from the body of Attorneys, but not chosen by their own clients the prosecutors. This extraordinary plan can make but little progress in the present Session, but it requires to be watched. It savours of another attempt to introduce official persons in lieu of regular practitioners to transact professional business.

On the subject of the Remuneration of Solicitors, Lord Lyndhurst on Tuesday last called the attention of the Lord Chancellor to this subject, which he described as of great importance to Solicitors, and not less so to the Suitors of the Court of Chancery. The matter was rendered of still more importance in consequence of a Bill now pending in the other House of Parliament, which would add a very extensive jurisdiction to the Court of Chancery. He was told that his noble friend on the woolsack was about to institute some investigation on the subject, and to introduce some alteration; and if that were so, he (Lord Lyndhurst) should not then give notice of a motion on the subject, as he had intended, but await the result of the inquiry. He wished to know from his noble friend whether the fact was as he had stated; and if so, who were the persons to whom the investigation was to be confided?

The Lord Chancellor said, his noble friend supposed he was about to institute an investigation; but the fact was, that he had already set such investigation on foot. He felt the subject was one of extreme importance. It was of importance to the Solicitor, and it was not less so, as his noble friend had stated, but in fact more important to the suitors of the Court. That the Solicitors were placed in a position that was unsatisfactory, no one could doubt; but it was always found that unsatisfactory as the present was proved to be, it was dif ficult to discover another that would be The rival Bills of Exchange Bills are still more satisfactory. But from time to time in the Select Committee of the Committee, certain alterations had been made, and and we understand there is now a strong some months ago he requested the Master contest on the question, whether the of the Rolls, who took an interest in the "Scotch Diligence" plan can do the work matter, to look into the subject, and see if cheaper than the other. It is said that the he could suggest any improvement. He noting, protesting, registering, and serving had done so, and having consulted some the parties, is to be limited by the Act to Solicitors, he made a report, which he (the

State of Law Reform-Remuneration of Solicitors-Executor and Trustee Bill.


Lord Chancellor) received about two weeks trouble incurred in the execution of the ago, on the first day of Term. He found trust.

from that report that the Master of the It is submitted that the Bill ought not Rolls had investigated the subject very to pass unless and until the Legislature closely, but, hampered as he was with shall deem it proper, after full and mature other inquiries, he (the Lord Chancellor) deliberation, to alter the existing law by a did not like to ask him to pursue the general measure applicable to all persons. inquiry further. The Master of the Rolls, If it were necessary to discuss the merits indeed, said he had so many matters of the proposed establishment of a company in hand that, although he would not for the purpose of undertaking the duties of shrink from the investigation, he would executors and trustees, the futility of the rather be released from it. He then had scheme could easily be demonstrated. If a recourse to Lord Justice Turner and Vice- person is minded to make a will or settleChancellor Wood, and put a paper into ment, he confides the execution of the trust their hands, and had a conversation with which he is creating to those of his relations them on the subject. They had very kindly or friends in whom he places the greatest undertaken to make the investigation, and personal confidence. He has to provide for he had united with them one of the Taxing the guardianship of his children, for their Masters, Master Follett-and put him in maintenance during minority, for the guarcommunication with them. He had also dian's consent to the marriage of his daughjoined with them Master Walton, one of ters, and for a multitude of details which the Masters of the Court of Exchequer, and require personal consideration of the vagave them directions to inquire if they could make any improvement in the scale of fees, or devise any manner in which the scale could be arranged.


THE main object of this Private Bill is to effect, for the exclusive benefit of the promoters, a most material change in the public law of the land. According to the law as it now stands, no executor or trustee can be remunerated out of the trust estate for the performance of his office, except by the express direction of the testator or settlor; but if this Bill is permitted to pass into a law, the company proposed to be established for the purpose of undertaking executorships and trusts, will be exclusively authorised to charge any trust estate which they may get into their hands with the payment of a commission to them, the amount of which is only to be limited by their own bye-laws and the sanction of the Treasury; this alteration of the law is so important a part of the whole scheme of the Bill that, unless it be effected, the Bill itself must fall to the ground.

rious contingencies of life as they arise. Assuming that any existing companies, however highly respected and successful they may be in their respective spheres, were willing to undertake such trusts, would a parent desire that the directors for the time being of such an establishment as the Bank of England, or the Royal Exchange Assurance Company should be the guardians of his children, and should have the control of their education and the selection of schools or tutors for them, or should be entrusted with the discretion of consenting to the marriage of his daughters?

Experience has proved, beyond all question, that the management of public companies is only successful in such branches of business as, from the magnitude of the capital necessarily employed in them, are beyond the compass of individuals, and that in all cases in which private individuals can compete on equal terms with public companies, the former will be the most successful. The business of executorships and trusteeships is essentially that which depends on personal confidence and discretion. It requires no capital whatever. It is that It is believed that any such change in which, of all others, appears to be the most the public law, for the exclusive benefit of unsuited to the deliberation of a board of an unestablished body, is unprecedented. directors, who must necessarily be continuIf the principle of the Bill be admitted, it ally shifting and changing. The disclosure follows that it is right and proper that all and discussion of the private affairs of faother persons or corporations who are wil-milies, of the amount of their property and ling to undertake trusts under similar cir- of the incumbrances upon it before such a cumstances should also be entitled to charge board, would be deprecated by all parties the trust estates confided to their care with concerned; and yet, without such disclosure the payment of commission for the risk and and discussion, it is impossible that the

trust can be properly or judiciously executed.

within ten miles from Lincoln's Inn Hall, to administer oaths and take declarations, affirmations, &c.

In pursuance of this authority, Commissions have been granted to a considerable number of solicitors, residing and practising in different parts of London; certificates being, in each case, laid before the Lord Chancellor as to the respectability and fitness of the person appointed.

Moreover, the duties and responsibilities cast upon the directors would be inconsistent and conflicting. On the one hand, they would be responsible to their constituents, the company for the most profitable exercise of their powers, which could only be effected by increasing the expense of the management of the trust funds committed to their care; while, on the other hand, they would This.measure has, as was anticipated, be responsible to their other constituents, greatly promoted the convenience of the the cestui que trusts, to limit that expense public. The necessity which previously as much as possible. It is from the con-existed for going to Chancery Lane for the viction of the impossibility of reconciling purpose of making an affidavit or declarathese conflicting inducements, that Courts tion, had long been felt as a serious pracof Equity have laid down the rule, that no tical grievance, especially to merchants, trustee shall, under any circumstances, de- men of business, and professional men, rive pecuniary remuneration for the execu- who were thus dragged away from their tion of his trust; and so stringent is the occupations, perhaps at the very busiest rule, that though solicitors, barristers, period of the day. bankers, and other agents must necessarily An attempt is now being made to limit be employed and paid in the management the beneficial operations of these powers, of trusts, yet a trustee acting in any of by means of the clauses above referred to. these capacities, for the purposes of the By these clauses, it is proposed to be trust, is debarred from the remuneration for his services which must and would be paid and allowed to him if he were not a


The very nature of such a society as is proposed by the Bill, and the interest of its managers and servants, will tend to throw every trust coming within its clutches into the Court of Chancery. Professional men know in how large a proportion of trusts there is sufficient to justify a trustee, if he desire it, in putting himself under the protection or guidance of the Court, with a full certainty that the costs he incurs in the proceedings will be repaid to him out of the trust fund. Good feeling, and a desire to save expense to the trust, alone keeps a trustee or his advisers from relieving himself from risk by such a course; but how little likely are such feelings or desire to deter the trust society from taking a step which may be evidently for their own pecuniary benefit!

For these reasons, and many others might be adduced if it were necessary,-it is submitted that the Bill should not pass

into a law.


enacted, that it shall not be lawful for any Commissioner to administer oaths, or to exercise or perform any of the powers or duties by virtue of his Commission, at any other place than at his place of business, except when attending sick persons.

These clauses formed no part of the Bill, as originally framed and brought into the House of Lords by the Lord Chancellor ; but they were introduced into the Bill in Committee.

It is submitted that they should not pass. The object of the Bill is stated in its title to be, "To make Provision for the more speedy and efficient Despatch of Business." But, so far from facilitating the despatch of business, these clauses will diminish existing facilities, by compelling deponents, in all cases (except sickness), to leave their places of residence or business in search of a Commissioner; whereas, now, the Commissioners will in many cases come to them.

Sickness is the only exception allowed by the proposed enactment; but it is only one of many cases in which the existing law and practice promote the convenience and advantage of the public. To members of the Legislature and of the Government, official persons, bankers, merchants, and men of business, ladies, aged persons, and

CERY. -LIMITING THE POWERS OF others, it is an obvious convenience to be


By that Statute (16 & 17 Vict. c. 78) the Lord Chancellor was empowered to appoint any persons, practising as solicitors

spared the necessity of leaving their homes, although not suffering from sickness, when they may have occasion to take an oath or make a declaration.

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