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CONTENTS OP VOLUMI XLIX,
THE BENCH AND THE BAR.
POINTS IN EQUITY.
Appeal from certificate to Judge at Chambers, 317
The Legal Observer,
-"Still attorneyed at your service.” — Shakespeare.
SATURDAY, NOVEMBER 4, 1854.
STATE AND PROSPECTS materially affected. Further and greater
changes in this department are contem. OF THE
plated, to which we shall hereafter advert. SECOND BRANCH OF THE PROFESSION.
| The most sweeping and conspicuous alterations which have been effected since
Lord Brougham's great speech on Law On the commencement of another Legal
Reform, have been in the jurisdiction and Year, with the opening of a new Volume,
course of proceeding in the Common Law it may be deemed not inappropriate to take
Courts. The forms of special original a general view of the present state of our branch of the Profession, and endeavour to fois
writs, declarations, pleas, paper-books, and form some estimate of its future prospects.
frivolous demurrers, which delayed the The recent General Meeting at Leeds of a
ces: suitors and increased expense, have been
aaltogether annihilated, and therewith all the large number of Attorneys and Solicitors from various parts of the country, as well as
large profits, easily earned, which accomthe metropolis, has furnished us with several
panied those proceedings. In like manner
the abolition of Arrest on Mesne Process, topics of observation of great importance, des
: destroyed another large source both of and we have a few others to suggest for det consideration, derived from other sources,
delay and expense. Our insatiable law
reformers, not content with these achieveor our own reflection. In regard to the present state of the
ments, proceeded to take away, root and
branch, all except a few actions from the practice or bnsiness of Attorneys and Solicitors, it cannot be disputed that it has
- Superior Courts not exceeding 201.; and
lastly, these “ small debts” were extended undergone several injurious changes within
concurrently to 501. Nor let it be overthe last 20 years or more. In the depart-lin
looked in this catalogue, that whilst the ment of Conveyancing, the diminution of
Attorneys were thus deprived (without the emoluments of Solicitors has not been
compensation) of a large part of their pracso great as in other branches, but still it :
tice, they were also excluded from filling the has been very considerable. For instance, by the abolition of fines and recoveries, the
petty Judgeships of the new Small Debt
Courts, although up to that time they had assignment of outstanding terms, the lease for a year, and other changes connected
satisfactorily filled the office of Assessors to with the Law of Real Property, the pecu
the Commissioners of the Courts of Re
quest, which were then displaced by the ninry interests of the Profession have been
new County Courts.
Next, in its effect on the Attorneys, came " It should not be forgotten that whilst about the never ending changes in the law and 50,0001. a year was taken from the Solicitors in
citors practice of Bankruptcy. The Solicitors in by the Act for dispensing with leases for a 1 year, the then Chancellor of the Exchequer re
a town and country who had been Commistained the stamp duty. The present Chancel. sioners, along with members of the Bar, were lar of the Exchequer has consistently abo- pensioned off, and all future Solicitors exlished this outrageous tax on a deed that no cluded from the new Commissions. Official longer existed.
assignees and messengers were appointed VOL. XLIX. No. 1,391. i
State and Prospects of the Second Branch of the Profession. to perform the greater part of the former welfare of the Profession, so far as it has duties of Solicitors ; large fees were exacted, already extended, let us turn to the conand the result has been the diminution of sideration of some further changes which business to such an amount, that the sup- are in contemplation. porters of the system are at their wits' end 1st. The Registration of Titles. — The to find means for defraying the expense of various former projects of entering every the costly establishment.
deed or instrument relating to land on a Come we now to the Court of Chancery, public register, appears to be generally abantime out of mind the great stalking-horse doned, and a new proposition is brought of reform. Here we have abolished offices forward, limited to the registration of titles. at the expense, well-nigh, of half a million The register, as we understand the plan, of money,—bowed out the ancient Masters will contain merely a description of the in Chancery ;-enabled the Court to decide property, and the name of the owner of the knotty points off-hand without the for- legal estate. The expense of this entry will mality, delay, or expense of pleadings ;— be small, but until a sufficient length of to examine witnesses vivá voce ;—and take time has elapsed to constitute a title by accounts in an administration suit as possession against every claimant, the costs rapidly as the most skilful accountant. of the investigation of the title must remain The result, however, of all these “improve. as at present. It is expected, however, we ments” is, that the Solicitors who con- understand, that Parliament will authorise scientiously discharge their duty are most a purchaser to call upon the registrar to ininadequately remunerated, and the strongest vestigate the title, and notice being given temptations are held out to the needy or to all known parties who have any interest lower class of practitioners who, if so minded, in the property, the registrar will determine can easily protract business and increase the sufficiency of the title, which being expense, and thus secure a sufficient return recorded shall be conclusive against everyfor their labour and responsibility. This body,-reserving only a right to compensastate of things is not only unjust to the tion to a claimant who has not received skilful and respectable practitioner, but in- notice; but enabling the purchaser absojurious in its consequences to the suitor. lutely to hold the estate. Of this, however, more hereafter : we are There can be no doubt that this modihere only indicating the consequences of fied plan of registration, if adopted, will be the present defective system.
carried into effect in the metropolis ; and it Such being the result of the various law will therefore soon be the duty of our proreforms on the usual and ordinary branches vincial brethren to consider whether their of business, we must not lose sight of the former decided objection to a metropolitan extraordinary sources of income which have registry of all deeds, is to any and what arisen in favour of a fortunate but small extent affected by the change in the nature class of the Profession. We have, indeed, of the registration. For our parts, we should heard it urged, in answer to the com- say, that if the Legislature be determined plaints of Solicitors, that new and extensive to try the experiment of a register of titles, branches of business have been produced they should confine it for the present to by the progressive changes which have Middlesex and Yorkshire, substituting the taken place in modern times. It is, indeed, new for the present defective registers. In not improbable that the amount of costs those counties, including large agricultuaral paid to lawyers within the last few years is districts as well as large cities and towns, as much as at any former period. This there would be ample room and verge for conjecture takes into account the vast ex- the experiment. It must be admitted that penditure connected with all the railways the expected advantage is remote, and of the country; but let it be recollected therefore there need be no dangerous haste that these are in the hands of a small for a few years,—especially as we know number of our brethren, and afford no that many who are in favour of the plan, compensation to 99 men out of every 100 conceive that it cannot be safely carried who have suffered by the diminution of all into effect without a public map; and the other kinds of professional employment. limited esperiment we suggest would set From these effects of Law Reform on the that question at rest.
2nd. The next projected change has for During the last Volume, we have often no- its object the further extension of the ticed the subject of the remuneration of Solicitors, and shall not fail to continue the
County Courts. The “small end of the discussion.
wedge” of these Small Debt Courts having
State and Prospects of the Second Branch of the Profession. been inserted in our judicial system, there would be the defalcations in public comseems to be no end of the struggles to over- panies. It may be true that many or throw the ancient Courts of Westminster, most of them will be trustworthy, and so and drive out our great lawyers and forensic are the vast majority of executors and trusadvocates. The original pretence of esta- tees. And if we wanted to point out a deblishing “poor men's Courts” is abandoned, partment of professional practice in which and dignified men having displaced the at. Solicitors are of the greatest possible service torneys from the old County and Borough to their clients :--saving them from misforCourts and Courts of Conscience, they tune or the mismanagement of their proseem ashamed of the humble duties they perty; advising them in difficulties ; exhave to perform, and desire to enlarge the tricating them from embarrassment; propowers and elevate the character of their tecting them from fraud ; and rescuing their tribunals to suit the estimate of their own families from improvidence, we should importance. If matters proceed much fur- refer to that large and eminently respectable ther, it will become necessary to restore class of Solicitors who are engaged in conthe former Courts of Request to adjudicate veyancing and general business relating to upon petty debts and claims. The learned the execution of trusts under marriage settleQueen's Counsel and Serjeants-at-Law who ments and wills, and with whom the secrets have accepted these minor judgeships are of families repose with unfailing security. looking forward (as one of them announces) The joint-stock scheme, if it were successful, to future promotion to the Bench of the would deprive the client and his family of Superior Courts, and consequently will de. their confidential advisers, and place the spise the petty plaints of the County Courts management of the most delicate affairs and and the adjustment of the small instalments important private arrangements in the hands by which they are to be satisfied. The of comparative strangers. Instead of this design now appears to be,- 1st, to establish large branch of legal business being distria Court of Appeal from the County Courts, buted, as it is, amongst a thousand Soliciconsisting of County Court Judges instead tors, each perfectly acquainted with all the of the Judges of the Superior Courts :- interests of the families of his clients, it thus enabling them finally to rule the law would be transferred to a few fortunate inin all the local Courts ; 2nd, to render the dividuals who had influence enough to proCounty Court Appeal Judges eligible for cure a good board of directors. promotion to the Bench of the Superior Courts; and 3rd, to transfer to the County From these considerations of anticipated Courts a large part of the business of the alteration in the course of professional Court of Chancery,-superseding to a great practice, we turn to some of the grievances extent the Chief Clerks of the Equity already existing, and which were forcibly Judges, and setting at naught the improve- noticed at the recent meeting at Leeds. ments recently effected by the Legislature Amongst these may be prominently placed in simplifying the practice, expediting the the loss of various offices of honour and proceedings, and diminishing the expense emolument which were formerly held either of suits in Chancery by an admirable sum-solely by Attorneys and Solicitors, or to mary procedure.
which they as well as Barristers were equally 3rd. Joint-Stock Trust Companies—We eligible. Of many of these they have been understand that the project for establishing deprived by recent legislation, and others these companies will be again brought for. I are almost invariably conferred on members ward. We shall watch the notices which, of the over-crowded Bar. As instances of we presume, will be given in the course of this kind may be mentioned, Commissionerthe present month, and apprise our readers ships in Bankruptcy, County Court Judgethereof. We must reiterate our opinion, ships, Examiners in Chancery, Government that the measure is wholly uncalled for, and Solicitorships, and various other appointwill be as injurious to the client as to the ments, for many of which “ Barristers of Solicitor. Private family trusts ought not seven years' standing” are declared by Act to be placed in the hands of a board of of Parliament alone competent. Such has directors. The alleged difficulty of pro- been the power and influence of the Bar, curing good trustees is imaginary. Per- that the Legislature has deprived the Judges sons of property always have friends ready of the power of selecting Attorneys who to assist them on such occasions, and the might, above all other persons, have been instances of breach of trust are few and far the most competent to discharge the duties between, and probably less numerous than required.
State and Prospects of the Second Branch of the Profession. Another topic at the Aggregate Meeting 'laughed out of Court by Punch! As a was, the large share of unpopularity in flattering example the learned writer refers which the Attorneys are held by the Press. to the Morning Advertiser, which is in We cannot say that the “briefless Barris- the interest of the innkeepers, but whose ter” escapes altogether the ill-natured wit praises have no effect on the public. In and vituperation of the “ fourth estate” of deed, as a lawyer's paper, we are told, it the realm, but undoubtedly the larger share would be altogether avoided, and we should falls on the Attorney. The “pers of the not obtain a hearing. Finally, we should ready writers” of the Press are held by a “ leave well alone." large number of gentlemen, whom, under Now, it should be recollected, that of all our vicious system of legal education, the subjects that interest the public mind, none indolent Benchers of the Inns of Court call can exceed those which relate to the admiunexamined to the degree of Barrister-at- nistration of justice. Trials, civil and eriLaw. The proprietors of newspapers fancy minal, stand next in the general estimation that menabers of the Bar of England must ne- to questions of peace and war, or the exeiteeessarily be possessed, not only of the wis- ments of parliamentary reform. Leading dom and acuteness which belongs to the articles against lawyers, it will not be eminent advocate, but that they are embued denied, are read with extreme avidity; and with the classical learning and scientific we cannot doubt that clear, concise, and knowledge which should precede the study of able statements of facts, with apt illustra the law. And although they do not always tions, and just and foreible reasonings, o spare their brother Barristers, it is manifest matters involving the character and integrity that, whenever occasion offers, or can be of the Profession, would also be read with created, the Attorney becomes the object of equal attention. unsparing aspersion. His motives are set Let it be remembered that the Clerical down to be the worst : he is always seeking Profession is amply represented, not only in to pervert justice for the sake of his own various periodical journals, expressly de gain ; he institutes a prosecution for the sake voted to its interests, but that more than of his costs, where there is no real ground of one of the public daily newspapers are ever aecusation; or abandons a just complaint, ready to advocate its interests and uphold either because it is unprofitable or a bribe its character. And so of other Professions directly or indirectly is offered for his ac- who possess their weekly, monthly, and ceptance!
quarterly representatives in the Press. The In order to remedy this state of things, it Profession might, indeed, for the most part was suggested by an influential and much- stand on its integrity, utility, and character, respected speaker at the Leeds Meeting but in this age, when so much depends on that a constant, systematic, and zealous the influence of public opinion, we agree counteraction of the aspersions in the Press with our esteemed friend at Leeds, “that should be effected through the medium of the claims of the Profession should be made the Press itself; and we concur entirely in known to the public through that powerful the necessity and justice of adopting the organ, the Press, demonstrating the in measures then recommended. We believe, terest which the public has in supporting if the Attorners would take the trouble to those claims, because the interests of the collect and state the facts and circum- Profession and those of the Public are comstanees within their knowledge, there are pletely identical.” many public journals which would do them We agree also, that the members of the the justice to bring their defence ably and Profession might be usefully assembled impartially before the public. It is sup- more frequently than at present, by general posed by a writer in the Law Times, in an meetings in London and the Provinces,' at article ably written, but somewhat incon- which subjects interesting to the general sistent with its general views, that it would body might be brought forward by coneisely be a waste of money and toil to attempt the written papers, followed by discussions advocacy of lawyers. He supposes the thereon, as well as by formal resolutions and laudation would not be read, or if read more elaborate speeches or lectures, after would be ridiculed; and that it would the manner of the British Association. defeat its object and increase the public. We deem it also for the welfare of the prejudice. It is assumed that a new daily general body, that there should be a cordial paper is contemplated, on' whicb 50,0001, union of town and country Solicitors. We might be thrown away ;--that it would be have often noticed the attempts which have opposed by the rest of the Press and been made to separate the interests of the