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not believe that either the bar or the country will accept the ultimate solution at which the solicitors are evidently pointing. But, in all probability, neither the bar nor the country would seriously resist the proposal which they put forward, if it were slightly modified, so as to become merely a step towards the natural and proper consummation, which is, not to mince the matter-that agents should be excluded altogether from the conduct of litigation. Little more than a century ago, counsel's clerks really performed all the ministerial work connected with litigation, and the only recognized class of agents were those engaged in conveyancing. It would now tend immensely to economy in litigation, and to the efficiency of its management, if agents were obliged to hand over the entire conduct of their causes, as soon as they are called in Court, to counsel and their clerks. There must be a special class of lawyers for this purpose; and it is a proposition very easy of demonstration, that the work will be done far more cheaply, and with less risk of miscarriage, if it is entrusted to one responsible counsel, than if two men-an agent and a counsel-have both to get their remuneration out of it, and, in doing so, divide the blame of blundering. In no country but this would such a stupid arrangement be tolerated; and in no other country would the people whose business it is not to conduct litigation, have the effrontery to suggest that they alone should be entrusted with it, to the exclusion of those who are apprenticed and trained for nothing else.

We beg pardon of our friends the solicitors, if we put the case too strongly; but while we have no desire at all to restrict their province, we feel entitled, and indeed bound, to tell them how their proposal strikes any one who, with sufficient knowledge, looks impartially at the question of the division of legal work. We have not discussed the question whether any formal distinction should be retained between the different classes of legal practitioners. We simply point out, in the meantime, that the solicitors really aim at abrogating the distinction of counsel and agent, though they have not the courage to say so; and that, while the country and the bar are hardly prepared to go so far, they are quite ready to adopt a different division of labour, which would not be quite so acceptable to the solicitors. For ourselves, we are not indisposed to consider, with a view to a radical reform, the question of abolishing the distinction of counsel and agent altogether. The solicitors say, with regard to counsel's clerk's fees, that they "are of opinion that the time has come when these fees should be altogether abolished." We confess that under the present system we think they are somewhat too high; but probably the first change ought to be, as we have indicated, the abolition of the present clerks' fees, and the transformation of clerks into agents, acting in all litigations under the guidance of counsel, or the transformation of a section of the agents into counsel, and of another into counsel's clerks, acting under the direction of counsel. In other words, the tendency is to the formation of a

new, and possibly an inferior, body of agents, not interfering at all with ordinary conveyancing and non-litigious business, but acting entirely as aids and subordinates to the bar. This, of course, involves the absorption of the present agents who are making all this pother either into the class of agents who keep apart from litigation, or into the Bar, where, we believe, many of them would meet with a warm welcome. It also involves a much more close and unremitting supervision of every case by at least junior counsel; consequently a considerably greater diffusion of practice, and the repudiation (already, in many respects, pretty complete) of many of the etiquettes by which the Bar has hitherto been protected and hampered.

The solicitors say " The Committee have also had under consideration the subject of agents practising in the Court of Session acting also as counsel's clerks. The Committee condemn this practice. It has long been a subject of complaint, and the Committee recommend that no agent should be allowed to practise as an agent, and also act as a clerk to a practising advocate." We need not say that the suggestions which we have been making tend to make all agents practising in Courts of Law neither more nor less than counsel's clerks; while, for the benefit of the client's purse, we would make him communicate directly with his counsel, and commute the heavy charges of a solicitor for the infinitely less onerous claims of a mere clerk.

We observe an approval of the recommendations of the Commissioners, that "all Court officials should be prohibited from engaging, directly or indirectly, in private practice." This is certainly desirable, and could be easily enough carried out if each Lord Advocate would only make abstinence from all practice a condition whenever a new clerk is appointed. But do Lord Advocates approve of the principle?

CONSTITUTION OF THE COURT.

Hitherto we have had to deal with subjects on which the Solicitors looked, very naturally, with some degree of prejudice. We have been obliged, therefore, to differ from them, and have expressed our opinions with more frankness than, we think, they have used. The remainder of our task is more agreeable. We entirely agree with them and the Commissioners in the opinion that the OuterHouse should be retained, but that greater elasticity should be given to the constitution of the Court than it has at present; so that it should have power to make the services of any judge available for any duty as circumstances may require. They further propose, and we agree with them, subject to the reservations which are implied in what we have already said, that

"With the view of relieving the Outer-House Judges of merely incidental work, a staff of competent persons, either advocates or agents, of not less than ten years' standing, be appointed as the principal clerks in the Outer-House, before whom records should be inade up, and all incidental motions and appli

cations, and unopposed petitions be disposed of, and to whom also remits might be made in matters of accounting. This proposal has nothing in common with the system introduced by the 1868 Act of going before the depute-clerks in the Outer-House with unopposed motions to be made by the agent or his clerk, a practice which fell into speedy disuse. Nor does the proposal involve the appointment of an additional set of officers of court, although, no doubt, it necessarily involves the introducation of a higher class of principal clerks in the Outer-House at an increased salary. The Law Courts Commissioners do not recommend the delegation of any of the functions of the judges to court officials, because, as they state in their Report, 'the Scottish Courts are not furnished with officials of sufficient number, and of the requisite qualifications, to relieve the judges of such duties. It is different in England.' It is quite true there are no such officials in the Scotch Courts as are here enumerated,—at least such officials as are attached to our Courts are known by other names. lt nevertheless appears to the Committee that the English system, whereby court officers relieve the judges of a considerable amount of routine work, might, with great advantage, be introduced into our Supreme Courts. And the Committee consider that this might be effected without increasing the present working staff of the Court, at least to any material extent. The Committee do not propose that remits should be made exclusively to these proposed officials, but in a very large class of cases it would not only be practicable, but highly expedient to follow that course. The Committee are clearly of opinion that these proposed officials should be chosen from qualified practitioners, counsel or agents of the standing before indicated. The Committee have further to remark that the expense of remits to accountants and men of business has a most deterring effect on parties desirous of having questions judicially disposed of, and they consider that under proper regulations as to expense, and safeguards against the Court being made the medium of extricating or adjusting ordinary accountings, trusts, and administrations, the Court should contain within itself the means of investigating and disposing of all matters which, under the present practice, are remitted to accountants and others, except when special and complicated cases arise requiring the assistance of experts."

The Solicitors do not approve of the Commissioners' classification of Outer-House business, and suggest a more simple plan. They

say:

"In the first place, they are of opinion that the procedure roll should be abolished, and that no case involving proof, either with or without a jury, should be sent to the debate roll; but that in the matter of adjusting issues, the former practice should be restored, of naming a specific day on which the issues should be adjusted. It would thus be necessary only to have one roll for debates on questions not involving disputed facts. But in case it might be deemed necessary to dispose of preliminary pleas, or pleas on relevancy, before fixing a diet of proof, the cases should be put out in order on specific days, to be heard on such pleas and disposed of; and in the event of the parties stating such pleas failing to maintain them successfully, they should be found liable at that stage in the expenses of the discussion, unless the judge should determine that it is not a case in which expenses should be awarded at that stage. The Committee believe that a wholesome check would thereby be placed on the mere matter-of-course statement of preliminary pleas; and the practice of stating such pleas would probably soon become unknown. In the second place, the Committee are of opinion that debates in the Outer-House ought to proceed in all respects as debates in the Inner-House, in regular order, attendance being made peremptory; and that not more cases should be put out for any day than are reasonably expected to be overtaken. They have no doubt that the absence of such a system in the Outer-House is one of the chief causes which retard Outer-House business. It is undoubtedly true that frequently the time of the judge is largely taken up by proofs and jury trials, and the Committee think that the suggestion made by the Commissioners of taking proofs at stated intervasl is a good one, and might with advantage be adopted."

135

THE LAW OF CLUBS.

A CLUB is not a partnership, and the rights and liabilities of its members inter se, and towards the public, are not regulated by the law of partnership. In the Matter of the St. James' Club, 2 De G. M. & G. 383, Lord St. Leonard said: "The law, which was at one time uncertain, is now settled that no member of a club is liable to a creditor, except so far as he has assented to the contract in respect of which such liability has arisen." And again he says: "The individuals who form a club do not constitute a partnership nor incur any liability as such." This case decided also that clubs are not "associations" within the meaning of the winding-up Acts of 1848-9. The later Acts relative to "winding-up" do not change the law as to clubs as laid down in this case. The case of Fleemyng v. Hector, 2 M. & W. 172, decided in 1836, is the leading case in England in respect to the liability of individual members of clubs for supplies furnished to the club. The "Westminster Reform Club" was organized under the following rules: That the initiation fee should be ten guineas; that the annual subscription should be five guineas; that if any subscription was not paid within a limited. time, the defaulter should cease to be a member; that there should be a committee to manage the affairs of the club; and that all the members should discharge their club bills daily, the steward being authorized, in default of payment on request, to refuse to continue to supply them. The Court held, in an action by an outsider against a member to recover for supplies furnished, that the individual members were not personally liable; for that the committee had no authority to pledge the personal credit of the members. Baron Parke, in his opinion, used the following language: "The rules of the club form its constitution. This action is brought against the defendant on a contract, and the plaintiff must prove that the defendant, either himself or by his agent, has entered into that contract. That should always be borne in mind. It is upon the construction of these rules that the liability of the defendant depends." In order to render a member of a club liable, it must be made to appear that the rules of the club specially authorized the incurring of the personal liability, or that the member distinctly assented to it. Todd v Emly, 8 M. & W. 505, was an action against a member to recover for the price of wine furnished to the commitee of a club. Baron Alderson said, that, "in order to establish the liability of the defendant, the jury should have been satisfied that what was done was not only within the knowledge of the committee generally, but also within the particular knowledge of the defendant." See, also, Reynell v. Lewis, 15 M. & W. 517; Wood v. Finch, 2 F. & F. 447. There are a few cases in which personal liability was held to exist upon grounds not at all infringing upon the doctrine of the above cases. In Cross v. Williams, 7 H. &

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N. 675, R. 302, an officer of a volunteer rifle corps was held responsible for uniforms furnished to the corps by a tailor, upon the principle that the officer had pledged his personal credit. In Cockerell v. Aucompte, 26 L. J. C. P. 194; 2 C. B. N. S. 440, the members of a club were held liable for coal purchased by the secretary, on the ground that the constitution of the club authorized the pledging of their personal credit.

Waller v. Thomas, 42 How. 337, was an action for rent against the members of the "City Club," a body consisting of over seven members, and therefore coming within the company laws of the state, in which the principal question was, whether under the New York statutes of 1849, 1851, and 1853, the members could be prosecuted in their individual capacity before exhausting the remedy against them in their collective capacity. The Court held that mode of action was optional, in the first instance. This case is not inconsistent with the general English law on the subject of club liability.

The relations of committees to the remaining members of the club have not been judicially established, but where committee-men incur positive liability, their remedy over against the other members would depend upon the nature of the agency.

With regard to the funds of the club, it may be remarked that a court of equity will interfere to prevent waste or improvidence. Charitable Corporation v. Sutton, 2 Atk. 400; 7 Beav. 301. The Court will not usually interfere to reinstate an expelled member. In Hopkinson v. Marquis of Exeter, 37 L. J. Ch. 173; L. R. 5 Eq. 63, by the rules of the club of which plaintiff was a member, it was made the duty of a general committee to arraign any member whose conduct or character was injurious to the interests of the society. Plaintiff was expelled in the prescribed manner, but the Court would not interfere, no caprice or wrong motive being proved. In Gardner v. Freenalte, 19 W. R. 256, the power of expulsion was placed in the discretion of the committee, and the Court would not interfere.

We are not aware of any cases that have been decided in Scotland with regard to Clubs.

THE APPORTIONMENT ACT 1870.

SOME cases on the extent and construction of this very important Statute have lately come before the Courts both of England and Scotland. In Lord Herries v. Maxwell, decided a few weeks ago in the First Division, a too ingenious argument was presented to the Court, to the effect that the heir-at-law of a deceased proprietor of land is entitled to the whole rents of arable farms for the term during which he died, when these rents are forehand rents, payable

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