Page images

Mr. WAKE (Sheffield) thought that all must agree in the broad principle, and half an hour. Besides the ordinary legal costs of the writ, including the that it was desirable to have justice brought to their doors.

“ warrant” fee before referred to, the debtor has to pay one guinea for the Mr. RYDER (St. Helens) did not know that the decisioos of county court officer's visit, mileage at sixpence a mile beyond five miles from the officer's judges were always accurate. He thought the frequent appearance of solicitors residence (and the officer may apparently live where he pleases), 5s. for posin the county courts would do much to raise the status of the courts.

session money, 4s. 6.1. for discbarge fee, and, finally, £5 49. for "poundago," Mr. LAVERICK (Hull) observed that the profession in London had never 80 that whilst the total law costs from the commencement of the proceedings takea kindly to the county court system, whilst in the country it was felt that to the lodging of the execation average but £5, the exponse to the debtor there could be no question of the desirability of extending its jurisdiction. within an hoor is increased by one blow to about $12. If it be said that the

Mr. WoodHouse, in reply, remarked that the objections raised to the debtor bears the burden, and the creditors need not complain, I answer that reforms he bad proposed had all come from London solicitors, and he would these prohibitory fees work as a drawback to the plaintiff

, for a generous impress upon them that there was a broad distinction between their practice creditor hesitates to assert his right when he knows that the penalty to his and that of their country brethren. The London solicitors had counsel always adversary is disproportionably serious. I may here quote a very small case. at hand and the courts just over the way, and had, therefore, not the necessity A poor man living some seven miles from Charing Cross, London, had been to resort to the county courts, which was experienced in the country. The paying off a considerable debt by easy instalments, and the final balance of country solicitor's remuneration was diminished by having to employ London | £3 14s. 10d. falling in arrear, the creditor instructed the sheriff. Within ten agente, and if they could get their work satisfactorily done by the county courts minutes after the officer entered, the defendant paid the claim out thus: Debt, it was to their interest as well as to their clients' that they should go to them. £3 14s. 10d.; law costs of execution and warrant, £l 5s. ; levy £1 1s. ; He maintained that the county court judges were very competent men. With mileage, 10:. ; poundage, 5s. ; possession money, 5s. ; release, 4s. 6d. ; total, the permission of the meeting he would alter his motion as follows :—"That in £7 58. 4d. The mileage of ten shillings was clearly an extortion, but the the opinion of this meeting it is expedient that the jurisdiction of county courts, frightened debtor paid it, and the bailiff in question may yet hear of this at all events in the courts possessing baokruptcy jurisdiction, should be matter. I say nothing of the cost in the event of the debtor not paying the generally extended, and that the practice and procedure should be revised, and officer instanter, such as further possession money, auctioneer's charges, and that the remuneration should be adequately increased."

the rack and ruin more or less inevitable to no organized system or surveilThe resolution was carried nem. con. in this shape.

lance ; but very questionable actions pass unchallenged. As to extortion, an

Aot passed pearly fifty years ago constitutes it a contempt of court ; moreOUGHT THE EXECUTION OF WRITS TO BE REMOVED over, an action will lie, and indeed a bailiff (though not the shoriff) may be FROM THE OFFICE OF SHERIFF?

indicted. But all these remedies are too complicated, for between the officer, Mr. F. K. MUNTON (London) read the following paper on this subject :

under-sheriff, and sheriff, an ordinary person completely loses bimself-in After referring to the history of the office of sheriff, Mr. Munton said :- short, the legal machinery is rarely put into motion. The irregularities of Let us look at the circumlocution connected with the putting into force of final bailiffs bave, of recent years, assomed serious proportions, and they may be civil process in England. Assume that a plaintiff recovers judgment by classed thus : mere veglect incident to the want of proper control, and wilful default, say for $100, with the average law costs of about £4, and that it is neglect for reward at the hands of the debtor, for most persons pressed to the desired to realize this £104 on the debtor's goods. The creditor has to issue extremity of an execution seek delay, and a douceur to the officer or his man is a lengthy, rambling document, bearing signs of an endeavour to modernize an an undetectable bargain. This wilfol neglect may be carried out in two ways : ancient form, directed to the sheriff (without even mentioning his name, and

one by suspending the actual levy, the other, and more frequent course, levying he most assuredly will never see the writ nor trouble himself at all about it), formally and then quietly taking or charging 58. a day for possession. I authorizing the seizure of the defendant's goods within a certain district, but know of an interpleader cage where 70s. was received for fourteen days' not elsewhere. This document being handed to the under-sheriff, that “possession,” though the man only remained on the premises one night, anctionary transfers bis authority to a third person, the officər, and the first limiting his attendance on the otber thirteen days to a call at moal-times, expense incurred by the suitor is a fee for No. 2 delegating or warranting No. and drawing from the unlucky debtor the price of an omnibus trip to and 3. Here we may pause to look at some incidental points in reference to this fro! This item recalls the fact that it is 18. 68. a day more than the preliminary and unnecessary item. If a levy be wanted on the Middlesex anthorized charge where the man is boarded (and he is invariably well side of Westminster Bridge, the “warrant costs 2s.6d.; if you cross the looked after in this respect), but such excessive charge is now so commonly bridge into Surrey, the fee 59.; whilst a warrant in, say, Lincolnshire, is made that I have not come across an officer for years who recognizes a three6s., and further still, say Lancashire, is 78. These fees were of course fixed and-sixpenny fee for possession. Sometimes the officer, without instruction, before railways and penny postage were universal; but there they remain,

and sets himself up as a judge and takes the lovy by instalments (probably on although they may be unimportant per se, they serve to illustrate my point. liberal terms to himself for the accommodation), and there are many other Before passing on we may glance at one or two positive anomalies. Whilst opportunities for the officer to retard progress before he gets to realization, ordinary process bas long since been operative all over England, a writ of and when he combines the business of anotioneer, as he frequently does, he execution is for one county only. Near a boundary, not always well defined, is completely master of the situation. Bat let us consider wbat happens a second writ often becomes necessary, and delays may be serious. Again, if when there is a claim for rent, or, what is more common, a third party sets you are moving about the time of change of sheriff

, a new warrant is charged ap a bill of sale or biring agreement. What does the officer do ? Does for on the strength of such change. If a sheriff dies, too, a new warrant must be with despatoh apprise the creditor, and does be take the slightest trouble be made out; and even if the Sovereign dies, the process has to be gone to ascertain the nature of the claim set op, or examine or obook the through afresh, demonstrating that whilst every other step in an action has sohedules with the goods on the premises to see if there be a sorplas? My been simplified, the final process remains as complicated as ever. But we experience is that be does neither ; iodeed, in many cases the officer does not will suppose that the correct warrant has at last been banded to the third move a pin's point until the creditor goes to the expense of issuing a person, the bailiff, who is to execute the writ in such a way that the sheriff peremptory role of court against the sheriff, commanding him to certify the may “forthwith " return the result to the court whereout the process issued. result of his labourg. Interpleader summonses are issued in the most reck. Bailiffs are a class of people varying from a decently respectable auctioneer less mauper, involving the creditor in delay and expense, and there is one down to an impecapious person, who would stand at nothing to serve his own reported case of an officer actually interpleading on the strength of a bill purpose. Blackstone defined bound bailiffs to be “mean persons appointed of sale given after the date of the lovy! The negloot of sheriffs' officers by sheriffs, on account only of their adroitness and dexterity in hunting and has become so babitual—that is to say, it is found so diffioult to procure seizing their prey; ” ratber a harsh definition, but it was complimentary in a

voluntary speedy attention—that mady practitioners issue a rale perempsense some of us would not indorse, for now.a-day few sheriff's officers are torily demanding a return, simultaneously with the issue of the writ itself, either adroit or dexterons-in fact, as a body, they are mere machines. It is

a needless expense to a creditor simply because he cannot get at the officer understood that one of the usual conditions in a bailiff's security bond is that he shall notify, “day by day,” what be bas done under each warrant, whether larities and troublesome conduct on the part of sheriffs' officers in various

by any less roundabout process. I could cite numerous instances of irrega. successful or not, and that he will never make excessive or improper charges counties, but where their misdoings have not been followed by legal proIt would be interesting to know whether any sheriff's officer in the kingdom

ceedings, I will not weary the members with details, confining myself to a returos “day by day ” what his movements are. All I can say is, that particular case as a specimen. Having been provoked by many previous in some counties I migbt name it would give me much satisfaction to peruse defaults, I recently made an example of the sheriff of a populous home such & diary in relation to executions issued out of my own firm's office. Again, I should be glad to know of any instance of an under-sheriff volun- county by demanding and obtaining damages for withholding the payment of tarily enforcing a bailiff's bond as regards excessive charges (uoless proceed.

the proceeds of a fi. fa. As soon as it was reasonably believed that the sheriff

was in default, 1 resolved to i890s a writ without the slightest notice ; so in ings have arisen), the under-sheriff, as far as I know, invariably leaving the unfortunate debtor to the mercy of chance. It is probably unnecessary for

an action of N. v. B., where the sberiff was ruled, and he omitted for half an me to say that I am only directing attention to the system, and not blaming, hoar beyond

the prescribed time either to obey the role or pay the money, as a body, the existing under-sberiffs, generally solicitors of the highest the sheriff was served with a writ without even the formality of a letter. repute ; but I submit that they have no direct interest, and it is no affair of Now we all know that this is prima facie a very discourteous proceeding, theirs to keep strict watch over the officers, or, at all events, id practice they and if any of us here were served with a writ for an ordinary Olaim with do pot effectually do so. Neither am I condemning all bailiffs ; there are

out notice we should make a pretty strong remonstrance. Did the poder. officers and officers, and some in London and some in the country are to be sberiff do so ? Not at all. He was apparently so used to it that he simply trusted implicitly; but my case is that people armed with such important sent a messenger immediately, not only to pay the fall amount of jądgment powers should either be permanent officers of the court, or persons under the debt and costs of execution, but the indorsed costs of the writ against the direct and immediate control of the creditor's solicitor, strengthened by sheriff. I declined the money on the following grounds : (1) I denied the speedy means of appeal, on either side, in case of difficulty. I am told that rigbt to tender at all in an aotion for damages ; (2) no interest on the levy in certain rural districts special bailiffs, nominated by the creditor's solicitors,

was offered; (3) I claimed compensation for detention of the fund; and are permitted to act, but the plan is scarcely feasible in large cities and towns (4) I frankly avowed that I wished to take every opportunity of exposing under the existing system. To return to the officer with his warrant to levy

Vague suggestions were thrown out but I stood firm, the £104 above mentioned, and assume that he proceeds conscientiously and and in due time I put in a statement of claim, afterwards delivering with alacrity, and that on calling at the debtor's house the claim is met in particulars of a somewhat novel character, ander four heads: first, the

the system.

olaim of the few shillings interest on the amount directed to be levied ; year £276 was expended in this manner at each board meeting, which, in the second, the expenses of ruling the sheriff; third, the nominal logs attendant year, amounted to about $100 in excess of the receipts for annual subscripon the money being withheld; and fourth (I copy this item nearly verbatim), tions. “ damages incident to plaintiff being obliged to make terms with sundry Mr. GRIBBLE (London) supported the resolution, and observed that if there debtors from the impossibility of getting writs of fi. fa. executed by defendant were any necessity at any time for an increased income, the solicitors would in bis county with anything like order or regularity, or obtaining the money respond to any appeal which might be made to them. from the defendant after execution of saob writs." I reduced this latter Mr. BURNE (Bath) was in favour of granting annuities instead of requiring item to a formal sum (it being inconvenient to deliver particulars of the the applicants to come to the board every year. debtors with whom I was compromising), and the claim altogether was Mr. WILLAN (Darlington) thought that too much was paid to non-members. experimental

. It aimed at the system, rather than actaal loss ; nevertheless This rather beld out a premium to solicitors to refrain from subscribing. the fourth item was really well-founded in point of fact; and, as the master

The CHAIRMAN remarked that the question was fully gone into at Brighton remarked at a later stage, he “wondered I had not indicted the parties." last year, when there was an unanimous expression of opinion that the society Not to weary the meeting, let me say that the sheriff, in the end, not only should not be considered as a benefit, but as a charitable association. paid the sixty odd pounds originally levied, but $4 damages, and $11 198, 6d. Mr. W. MELMOTA WALTERS (London) observed that the average amount taxed costs, incident to big default. Few praotitioners, however, would given to aon-members was £15, and to members £30. He objected to the take this trouble, especially as the writ has to be pointed at the sheriff accumulation of funds. What did they intend to do with them ? Some bimself, wbo, one koows, is usually personally innocent. In some private were of opinion that they should be spent in bricks and mortar, and a school correspondence I had with the new sheriff it transpired that before be bad built; but he was most strongly opposed to this, and would have the money been in office twenty-four hours three complaints from solicitors reached given so that the children might be sent to whichever schools were preferred in question,

and, on the whole, una bataie from agattige ting i nombre fino targeta Ir. WHITEHEAD (London) was opposed to the life subscriptions being paper. But we come back to the main question whether the time has not treated as capital. arrived for introducing a radioal change in these matters, and in conolusion

The motion was carried. I throw out the following suggestions for the consideration of my profes

On the motion of Mr. BURNE (Bath), seconded by Mr. HARPER (Bary), it sional brethren and the council of oor society, should occasion offer for was resolved, " That the directors be requested to consider whether grants for recommending alterations in the system :-(1) That the execution of final such objects of the bounty of the society as may seem suitable may not be civil process should be removed from the office of sheriff. (2) Tbat an exeon

by way of annuity.” tion department should be establisbed in the Soprame Court, controlled by

On the motion of Mr. W. BERIAH BROOK (London), seconded by Mr. an official easily accessible. (3) That all writs of execution should be SIDNEY SMITH (London), the bye-laws were altered, so that a public account. available throughout England, and be aoted on without supplementary ant should be appointed, in addition to twofauditors selected froni amongst

the members. warrant. (4) That bailiffs should be appointed by the court, under proper regulations and supervision, and be answerable direct on application to the auditors for the ensuing year.

Mr. Stepben Williams, Mr. Henry Soutar, and Mr. H. Schröder were elected execution department by any person alleging himself to be aggrieved. (5) That writs of execution should be marked with the day and hour of chairman, were carried ananimously, and the proceedings terminated.

Votes of thanks to the board of directors, who were re-elented, and to the issuing, and take priority acoordingly, the writ being dispatched by the execution department straight to the bailiff in rotation. (6) Tbat unless otherwise directed in writing by the creditor's solicitor, all proceeds of execution should be at onee paid into court. (7) That the costs and fees Previous to the resumption of the regular order of proceedings, on on executions should be altogether revised. (8) That all business in relation Wednesday, Mr. S. WHITEHEAD (London) said that the society were without to executions and interpleader should be transferred to the execution an invitation for 1883, and suggested that they should entertain their department with provisions for the speedy intervention of the judge. provincial friends in London next year. Lastly, that whether the foregoing suggestions be acceptable or otherwise, The PRESIDENT remarked that the matter bad better be left to the conthe system should be forthwith modified by stringent regulations so as in sideration of the council. When the Metropolitan and Provincial Law some degree to lessen the present abuses, which I venture to obaraoterize Association was amalgamated with the Incorporated Law Society, it was as among the gravest in the practice of the law. Dr. Miller (Bristol) hoped that some soch suggestion as that suggested stipulated that a meeting should be held annually in the provinces.

Mr. Lee (Birmingham) moved, and Mr. Kemp (Wakefield) seconded, with regard to the execution department, &c., would be adopted.

that the paper on the Married Women's Property Act, by Mr. Lowe, be Mr. P. GODFREY (London) moved a resolution to the effect that the law

next taken, the sobjeot being of great practical interest. of execution required amendment, and that the meeting would suggest to

A discussion ensued, and eventually the motion was negatived. the council that the subject should be taken into consideration forth with with a view to immediate legislation.

At a subsequent period Mr. COTHAX (Bradford) moved : “That it be an Subsequently Mr. GODFREY withdrew the motion, and a motion by Mr. instruction to the council to settle the order in which the papers are read at Munton, that the recommendations contained in his paper should be taken provincial meetings—that first in order should be read sach papers as, in into consideration by the council with a view to their suggested legislative having regard to then recent legislation, in preference to those of more

the opinion of the counoil, deal with subjeot-matters of great interest, aotion, was carried. The meeting then adjourned.

general interest."

Mr, DEAKIN (Birmingham) seconded the motion.

The PRESIDENT thought it scarcely desirable that a resolution to this SOLICITORS' BENEVOLENT ASSOCIATION.

effect should be passed. The counoil were prepared to pay due attention The forty-ninth half-yearly meeting of this society was held on Wednes- to the wish of the meeting, and it would be better that it should be left day morning at the Royal Institution, Albion-street, Holl, Mr. F. H. JANSON in their hands. presiding.

The motion was withdrawn.
The usual formal business having been trangacted,
Mr. MARSHALL (Leeds)_ brought forward a motion of which he had

PRACTICAL SUGGESTIONS FOR THE ESTABLISHMENT OF given notice as follows:-“That having regard to the large accumulated funds

COURTS OF COMMERCE. of the society, and to the annual income from other sources and probable increase, this meeting recommends the board of directors to consider whether

Mr. A. M. JACKSON (Holl) read a paper on this sobjeot. the amount granted might not be increased, and whether, if in tbeir opinion this cannot be done, some other mode of carrying out the main objects of the ON THE INCONVENIENCE CAUSED BY THE CUSTOMS AND society might be devised." He observed tbat the income of the association

INLAND REVENUE ACT, 1881, AS TO DUTIES UPON PROBATES amounted to 1,731 guineas from annual members. There were also a certain


MORAL OBJECTION TO THOSE ENACTMENTS. number of life members who paid ten guineas, and a certain amount from donations under wills, and so on, which, although they might vary, might be Mr. W. Smith (Sheffield) read the following paper with this titla:looked upon as a sure cource of income. Last year, in addition to the In offering these observations, I beg to disclaim any idea of adding to the amount expended in relief, they had paid the whole of their expenses and bad information already possessed by the gentlemen who hear me. The inconcapitalised £1,600 or £1,700. He thought that a society so strong in funds veniences of the present law as to probate duties are necessarily more actually and prospectively might properly spend larger sums in granting frequently brought before solicitors than any other class of the community. relief. He thought that instead of £30 a year being given to necessitous to the merchant or manufacturer, or to men of other callings, the incon. inembers, the sum might well be increased io £40 or £50. In canvassing for veniences in question occur, perhaps, only twice or thrice in a lifetime. But the society he was frequently met with the remark, "The society is rich to the practising solicitor they are of constant occurrence. And therefore I enough, you don't want money,” and it was very difficult under existing cir. wish to take the sense of a gathering like this, which, although possessing no cumstances to enswer that objection. They had the large accumulated capital official authority, may be taken potentially and actually to represent the of £44,000, which was constantly increasing by virtue of the bequests and views and feelings of the profession. Prior to 1880, the law and practice as other windfalls which came to the society. The annual subscriptions would to probate duties were based upon common sense and convenience. An also doubtless increase. He therefore begged to move his resolution.

executor, as is well known, cannot take a step (except “of his own wrong.' Mr. BRAMLEY (Sheffield) seconded the motion. He thought the £15 as the law puts it)--cannot draw a cheque, or give a receipt, until he gets his given on an average to the non-members was not nearly sufficient.

probate. And inasmuch as in the great majority of cases considerable time The CHAIRMAN remarked that the total income in subscriptions for the last is required before he can ascertain, with anything like accuracy, the exact year was £1,817, for invested property £1,604, making 33,421, The working amount or value of the estate, the law allowed him a margin by fixing stages expenses were £743, leaving a balance of £2,677. There were ten board of value ; so that it was sufficient to depone that the value of the estate was meetings, which would give £267 to be given at each meeting, without trench. (0.9.) above £1,000 and under £1,500. This met the circumstances of the ing upon dopations or life-donations, and it appeared that in the course of last case; and when the detaileil account came in due time to be furnished, if it

as I

we re found that the value had been over-estimated, duty was returned ; if meeting, as containing matter well wortby of the best and earliest attention the original estimate were insufficient, further duty had to be paid. So far of the Council of the Incorporated Law Society." as I know, the system worked well; and speaking with the experience of a Mr. DODD (London) seconded the motion, whioh was carried. solicitor who has been in practice thirty-eight years, I have no hesitation in saying that, as a rule, the Crown managed to get every penny it was entitled SUGGESTIONS FOR THE IMPROVEMENT OF THE LAW OF to. In 1880 the practice was introduced of requiring a detailed account of

COPYRIGHT. particulars of the estate to be delivered, along with the application for pro- Mr. T. A. ROMER (London) read a paper on this subject. bate ; but no alteration was made in the form of oath as to the value, and the

Mr. MUNTON (London) criticised the arrangements at Stationers' Hall, and account to be furnished was to include the "estimated value” of the parti suggested that they should be placed under the control of a solicitor. culars. But in 1881 the attempt was made to adjust the duties payable in the first instance on taking out probate, according to a standard more nearly

SOLICITORS AND THEIR SELF-CREATED HINDRANCES AND approximating to a perfect theory. After all, it was but an approximation.

HELPS. The perfect theory would be to adjust the duties to every pound, shilling, and penny of the value of the estate. This, think, may be taken admittedly

Mr. S. LEAROYD (Haddersfield) read a paper upon this subjeot, which we to be impossible. The Legislature, however, seem to think-or those who hope to find room for hereafter. pull the wires of the Legislature are of opinion--that the duties may at once,

Mr. BRAMLEY spoke in favour of raising the standard in the preliminary in the first instance, be adjusted to every £50 in value of the estate up to examination. £1,000, and afterwards to every £100 of value. Well, I think that except in

Mr. KIMBER was of opinion that the preliminary examination should be very small estates, and where the assets are of the simplest character, this is made as severe as the matriculation examination. impossible. Take the case of a solicitor in good practice. He has bills in Mr. L. EMANUEL (London) urged that solicitors should be permitted to his books for chancery matters in which he cannot get his costs taxed and his send doouments to a solioitor who should lay himself out for such work in. bills paid until the actions are ended. His executor can only make a blind stead of being obliged to send them to a barrister. guess at their value as an asset. Or take the man of business, who is perhaps

Mr. WALTERS was glad to be able to state that all applioations for disa partner in three or four different concerns in different parts of England. How pensing with the preliminary examination were now submitted to the Council can the value of his interests be ascertained with anything like exactness within of The Incorporated Law Society. He agreed in the principle that solicitors the time by which it is absolutely necessary that probate should be taken out ? should extend their efforts in the direction of appearing as advocates ; bat But the executor has to pledge his oath before he can obtain probate that the it must be remembered that tho solicitor had to coopy himself with an end. account is “a true account of all the personal estate and effects of the less variety of work. Let those who felt themselves fit for the work do it, deceased,” &c., and that “the gross value thereof altogether is £ "; and but let others call in the legitimate specialist, the barrister. his deposition that this is true ends with the solemn words, “so help me God"; which are equivalent to the more impressive Scotch phrase

OUGHT SOLICITORS TO BECOME AUCTIONEERS ? shall answer to Almighty God"! It is true that all this is qualified by the concluding words of the affidavit, “to the best of my knowledge and belief.'

Mr. J. S. RUBENSTEIN (London) read a paper thus entitled as follows :But does not this open the door to great laxity, and negligence of the sanctity tioneers ?" would have sounded strange if not meaningless. In Liverpool,

But three months ago the question “Ought solicitors to become auc. of an oath? And is it not morally wrong to compel a conscientious person, it is true, and perhaps in some other parts of the country, sales by auction have who happens to be appointed an executor, to pledge his oath to the entire been conducted by solicitors up to the point at which the property was accuracy of an account, even but to the best of his knowledge and belief

, actually put up to be bid for; then the auctioneer steps in. And in when he feels that he has not had time to make that full inquiry which is Scotland the same practice prevails. But London solicitors at least, and necessary to enable bim to ascertain within some hundreds--it may be more —of pounds the total value of the estate ? And what is the value of know- with auctioneers. By the General Order laid before Parliament on the 10th

indeed the vast majority of the profession, had never thought of competing ledge and belief," where by the very hypothesis that," knowledge” is im- of August last, under the Solicitors' Remuneration Act, 1881, this question perfect, and "belief” based upon that "knowledge ” must necessarily be worthless ?. If the meeting concur in the above views, I hope we shall not bas however been suddenly raised. The order expressly authorizes solicitors separate without urging upon the council of the society the desirability of vides, moreover, that “the scale for conducting a sale by auction shall apply

to make professional charges for conducting sales by public auction. It protheir taking action with the view of returning to the former practice, which only in cases where no commission is paid by the client to an auctioneer.” was infinitely more convenient, and did not press upon tender consciences in These are the very words of the order. Is not the inference irresistible that the matter of the oath.

the highest legal authorities in this country consider that the work hitherto Mr. WAKE (Sheffield) hoped that the society would be able to bring their done by the auctioneer may properly be done by the solicitor ? Attempts weight to bear in the direction of recognizing the sanctity of an oath. He have indeed been made to fasten some other meaning upon the order ; but would suggest that they should take the paper into consideration with a view those attempts have failed. That solicitors may therefore act as auctioneers, to legislation, by which a temporary probate might be granted, so that a without in any way overstepping the bounds of professional propriety, must return might be made and in six or twelve months afterwards increased duty be taken to be beyond dispute. The practice has bitherto been local and might be paid. The PRESIDENT said that shortly after the Act was passed he had seen Mr. The one question that remains for discussion is a question, not of professional

exceptional; it has now been officially recognized and officially sanctioned. Hanson in a case that arose in his own office under which he was subjected etiquette, but simply of expediency. It is not unprofessional for a solicitor to to great inconvenience. His reply to his (the President's) complaint was that act as an auctioneer ; but is it wise for him to do so ? At the very outset it the practice had prevailed in Scotland for an indefinite period and was con- must be allowed that the ordinary duties of an auctioneer are in no way sidered to act weil by the Inland Rovenue authorities, and had been forced unworthy of solicitors. A fair knowledge of surveying and of the management upon them by their having been forced to consent to the deduction for debts. of farms and building estates, sufficient literary and descriptive talent to draw He (the President) did not think there was anything in the moral objection, up a business-like advertisement, the self-possession, good humour and address because the oath was qualified by “the best of my knowledge and belief."

necessary for the actual conduct of a sale would be very desirable additions to Mr. MUNTON (London) knew several cases where executors had declined to the qualifications of many solicitors, and would lower the dignity of none. prove wills at all, and were practically carrying on the testator's business Can any good reason be given why a solicitor should not exercise these qualiand undergoing all the risks that would accrue under such circumstances. ties if he possesses them, why he should not by such exercise cultivate his

Mr. J. Dodds, M.P. (Stockton-on-Tees) could not agree in the con- business talent, and why such business talent should not receive the increased clusion of Mr. Smith's paper. He (Mr. Smith) proposed to go back to the remuneration it deserves ? From a professional point of view an objection, former practice, which would be a step in the wrong direction. They had perhaps the only one, may be arged against solicitors undertaking these new þetter proceed on the lines which they had taken up by recent legislation and duties–Damely, that these duties may lead to touting, and a consequent improve the practice so as to get rid of the difficulties which had been re- lowering of the tone of the profession. If this result were inevitable, or even ferred to. Solicitors were now allowed to deduct the debts owing by the in any high degree probable, then this extension of the solicitor's duties could testator. Everything was of course approximate, and he thought the sug- not be too strongly deprecated, not only in the interests of the profession, but gestion that there should be something in the shape of a professional certi- in the interests of the public. Nothing that degrades the profession can profit ficate in the first instance, giving validity to the will and leaving the exact the public. But is there any good ground for supposing that this enlargement amount to be ascertained at a subsequent period, would work well. He of their sphere will tempt solicitors to be untrue to the honourable thought that the difficulties wbich had been referred to could be met by im- traditions of their profession ? The men that would tout then are the provements in the regulations at Somerset House, and that further legisla- men that tout now. Every extension of the duties of tbe profession, tion was not needed. It had been under consideration whether the whole of every development of new branches of law, as has been seen for instance the probate and legacy duties should not be paid in one lump; but it was in regard to bankruptcy and public companies, opens a new field for never contemplated that it should be paid down immediately upon the death professional improprieties in opening a field for professional of the testator, but that the person having to pay it should have the option activity. Bot is the development of the profession to be hampered because of paying it at either time, in the way that succession duty was now paid- every new field

must be open to the unscrupulous few as well as to the ap. paying interest at four per cent. and being allowed interest at four per cent. on right many? The leaders of the profession and the great body of its mom. payments being made in anticipation. The steps that had been taken had bere may surely be trusted in the future, as in the past

, to condemn and been in the right direction, and things would work better in the future than practically to weed out unworthy or unprofessional practices. In the interest in the past. There would always be a little room for laxity.

of the client is not the innovation on the whole desirable ? It is no true Mr. BURNE (Bath) epoke of the very great inconvenience to solicitors in division of labour to employ two to do the work of one. If particulars of the arrangements at Somerset House whenever it was necessary to go into sale can be prepared and properly submitted to competition as well by the the probate room and the clerk had to "draw” the affidavit, when the solicitor as by the auctioneer, then the division of labour entailed bý iba solicitor was sometimes kept two hours waitiog for the will and affidavit. employment of two persons in place of one is no longer a gain to the client

Mr. Dodds observed that this was entirely a matter of arrangement at but a positive loss. In mercantile affairs it is not now considered an advantage Somerset House, and that no legislation was needed.

to break up business into a needless multiplicity of branches. In large Mr. WABE moved, " That Mr. Smith's paper commends itself to this establishments where many branches are combined, ti a public can be better




cheaply supplied than if they made their parchases trustee ; (3) she was entitled to a settlement on the part of her husband, at mapy small shops. Even now legal firms divide their work into depart. whenever he had to seek the aid of the Court of Chancery, in order to possess ments. What could be simpler than to extend the conveyancing depart. himself of any property that he was entitled to in her right; (4) she was ment so as to ioclude the conduct of sales by anotion ? The publio would entitled to enjoy, as her separate property, all earnings acquired by her in any benefit by the unity of management, and still moro by the high standing business carried on apart from her husband after she had obtained protection and responsibility of the persons to whom their sales would be intrusted under the Divorce Act. In addition to these exceptions, she had the chance At present anyone can call bimself an auctioneer, and bold bimself ont as of again acquiring, by survivorship, any of her chattels real which her competent to conduot a sale, no matter how large or important. Considerable husband had not disposed of, and any of her choses in action which he had goms frequently pass into the hands of anotioneers by virtue of their calling. not reduced into possession. But these were indeed very remote contingenCan there be a doubt that it would be to the advantage of the publio to cies, and could hardly be said to constitute an additional class of separate be able to employ men oocupying the position of officers of the court and property. The concurrence of a married woman was necessary in the disposal directly sabject to its control? In the training a solicitor mast andergo by her husband of her real property and of her reversionary personalty, and, before be can be admitted, and in the position he subsequently occupies as

as a safeguard against her being coerced into this concurrence, the Fines and an officer of the court, the poblio have guarantees for the due discharge of Recoveries Act and Malins' Act respectively rendered the formality of separate the duties socb as can be given by no other class of persons. Anotioneers acknowledgment on her part also necessary. And a married woman was of the big best standing and the nicest sense of professional hopoor there totally unable either to sue or be sued in her own name, except, perhaps, when undoubtedly are, but the

public bave no protection such as the employment carrying on business apart from her husband, and having the protection to of solicitors will give. The changes thus foresbadowed bave come upon the doctrine of "

which I have referred. I think that up to this point no one could say that Bolicitors generally entirely by surprise, and no doubt find some to whom

separate estate” had been carried in any degree too far. I they are unwelcome, and many more to whom they are still puzzling. To next come to “The Married: Women's Property Act, 1870." The chief attempt pow to frame regulations for the guidance of this new departare alterations effected by that Act may be shortly stated as follows :-(1) The may perhaps be premature, if not unwise ; but snoh changes, far reaching earnings of any married woman acquired after the passing of that Act, apart and of vast importance as they undoubtedly are, may well' lead to still from her husband, and all investments of them, were declared to be her further enlargement of the duties, of the responsibilities, and also of the separate property ; (2) all personalty coming under an intestacy, and money rewards of the profession.

not exceeding £200 coming under a deed or will, to any woman married after There was no discussion.

the passing of the Act, were declared to be her separate property ; (3) the rents

and profits of any freehold, copyhold, or customary property (not affected by SIMONY.

settlement) coming to any woman married after the passing of the Act, as Mr. G. R. DODD (London) read a paper on this subject.

heiress or co-heiress of an intestate, were declared to be her separate property,

It was also provided that certain investments of money might be made, and MARRIED WOMEN'S PROPERTY.

certain policies of life assurance might be effected in the name of a married

woman for her separate use. But as the husband would in these cases have to Mr. F. W. Lowe (Birmingham) read the following paper on this subject :- be more or less of a consenting party, and as the same things could previously In olden times, before the primitive rules of our much-venerated common have been carried out by settlement with the intervention of a trustee, I Jaw had begun to yield to the encroachments of an advancing civilization, do not think that this provision made any material alteration. Another the title of my paper would have seemed but a paradox; for I must have provision, however-namely, that a married woman could take civil and started with the initial doctrine that a woman with all her belongings became, criminal proceedings with regard to her separate property, in her own by the act of marriage, altogether invisible to the eye of the law, except as name-certainly created an entirely new principle ; but, strangely enough, forming part of the estate of the man to whom she had thus resigned her there was no provision for similar proceedings being taken against her. being. This procees of merger, I believe, came into vogue mainly for the The principal changes, then, effected by this Act, were the creation of the advantage of women themselves, who were wont to be regarded as the weaker three new kinds of separate property which I have mentioned, and the sex; and, therefore, to need for themselves and their property the more enabling a married woman to institute proceedings in her own name. It will powerful control of those, who were looked upon as their most natural pro- be seen that these changes trespassed, to some extent, upon the old doctrine ; iectors. But, as everyone is aware, this time. honoured doctrine has long but it was still preserved, and the effect in practice has certainly not been to since undergone a considerable amount of change. Whether it was considered create any separate legal status for women materially different from that too plain in its native simplicity to form part of a system of law so com- which they before possessed. But now a great and revolutionary change has plicated as our own, or whether women gradually awoke to the consciousness suddenly been wrought. At the fag end of last session a large and important that this absolute control on the part of their busbands was not altogether measure upon this subject was hurried through Parliament with scarcely any consistent with what they had learned to consider as their rights, I know not. warning and with scarcely any protest. I need hardly say that I refer to At all events, let it suffice for me to say that a great change bas taken place. the Married Women's Property Act, 1882, which ostensibly professed to conTrustees have jo very many instances been substituted for husbands as pro- solidate all previous law upon this subject. I do not know what meaning tectors of the property of married women. The Court of Chancery has the framers of this Act desired to convey by the word “consolidate," but a assumed a special control over such property, in like manner to that of infants perusal of its provisions shows beyond all question that, instead of consoliand other persons supposed to need protection ; and various statutory enact. dating, they have in effect made away with the greater portion of the law ments bave from time to time been passed with similar objects in view. So which was previously considered to govern the property of married women. that married women have long since emerged from wbat I will call their And they have not only done this, but they have proceeded to enact their "extinct coverture," and have gradually attained to the prood position of new law from an entirely different standpoint and on an entirely new basis being entitled by law to enjoy property separately and apart from their bus from that upon which the whole of the previous law was founded. The most bands. But, although the original doctrine of husband and wife being con. material of its provisions are as follows :-(1) Any woman married before the sidered one person in law has been thus modified, it has until recently Act comes into operation (the 1st of January, 1883) is to be entitled to hold continued to exist, and it bas moreover been hitherto recognized as the basis and dispose of all property whatsoever, her title to which accrues after that upon which all laws affecting busband and wife bave been founded. Unfor- date, as her separate property in the same manner as a feme sole, and withtunately, all busbands are not good busbands, and even if they were, they are out the intervention of a trustee. (2) Any woman married after the Act not all provident and carefnl over money matters; otherwise, married women's comes into operation is to be entitled to hold and dispose of as her separate property would probably have continued to be as little known to lawyers of property, in like manner, all property whatsoever belonging to her at the the present as it was to those of the past. But this being so, and likely to time of her marriage, or which after her marriage she may acquire, or which continue so to the end of ibe chapter, I do not think that many will complain may devolve upon her. (3) Any married woman whether married before or that the doctrine of separate estaie bas hitherto been carried farther, or, at after the commencement of the Act, is empowered to enter into contracts in her all events, not much farther, than was necessary and expedient in order to own name-she may sue and be sued in contract, in tort, or otherwise, in her prevent the possibility of married women of means being ruined and left own name—and she may have, in her own name, all the same remedies, civil destitute by reason of their property being squandered or lost by spendthrift and criminal, for the protection and security of her separate property as if or improvident husbands. But whilst the necessity of guarding against the she were a feme sole. Any damages which she may recover in any action vagaries of bad husbands has thus become recognized, the majority has not are to belong to her for her separate use. And all this, with few, and as I hitherto been altogether sacrificed for the minority. The fact that others are think, unimportant, exceptions, is to apply to dealings with and proceedings very many more good busbands, able and willing to look after and protect the against her husband in the same manner as with and against other persons. property of their wives, bas not been altogether ignored. Hence the funda. (4) Any married woman having moneys invested at the commencement of the mental principlo of uoity between husband and wife, to which I have referred, Act in any of the very numerous classes of security specified, either in her bas been preserved throughout all changes ; and it would be difficult to trace own name or jointly with some other person (not being her husband), and anything in the decisions or statutes hitherto regulating this subject which could any married woman who shall invest moneys or have moneys invested for her be suid materially to war against this principle-anything which could be said in like manner after the commencement of the Act, will, unless the contrary is to raise up bones of contention between husband and wife-or anything which shown, be entitled to hold them as her separate property, and she may receive could by possibility be construed as likely to provide weapons to either with the dividends and transfer the securities quite independently of her husband. which to destroy the harmony of domestic life. Prior to the Act of 1870, (5) As a natural consequence of the provisions I have mentioned, all the the law affecting the property of married women, stated briefly and generally, separate property of any married woman is to be liable in law to meet her seems to have been pretty much as follows :—The husband of a married general engagements, and to compensate for any wrong committed by her, or woman, immediately on his marriage, became entitled to the whole of her for any costs to which she may become liable in any action. She is to be property, with the exception of her real estate, in which he took a qualified, liable to criminal proceedings on the part of her husband to the same extent but still a very substantial interest. This rule, however, was subject to as he is to be liable to criminal proceedings on her part. She is to be subject to exceptions in the following cases :-(1) The wife had a certain qualified the bankruptcy laws. And she is enabled to accept any trust or to underproperty separately from her husband' in articles of personal adornment, take the office of executrix or administratrix in the same manner as a usually referred to as her paraphernalia ; (2) she was entitled in equity to feme sole, and without the consent of her husband. (6) The Act is not to enjoy all property settled to her separate use, with the intervention of a interfere with the provisions of any settlement or with any restriction against

anticipation which may be attached to the property of any married woman.

VOTES OF THANKS. It is somewhat remarkable that the application of the Act of 1870 should have been so carefully limited to women married after its commencement, A cordial vote of thanks to the Hull Law Society was, on the motion of Mr. whilst this Act is made to apply, almost without exception, to married women WALTERS, seconded by Mr. Howlett, passed upstanding, and with acclamagenerally, whether married before or after it comes into operation. It seems tion. to me that it would have been better to allow a little more time for the Mr. Lowe, President, and Mr. WATERHOUSE, Secretary, of the Hull Law country to prepare itself for legal changes of this magnitude. Then, too, Society, replied. this Act seems to be inconsistent with the policy of the previous law affect- On the motion of Mr. MUNTON, seconded by Mr. BRAMLEY, a vote of ing this subject, in the following respect :-Before, even when there was no thanks was passed, with applause, to the Philosophical Society for the use of restriction against anticipation attaching to the separate property of a their building. married woman, she had by no means so full a power of disposing of it as is Mr. L'EVONSHIRE moved, and Mr. SHIRLEY seconded, a vote of thanks to the conferred upon her by this Act. Now, apart from any settlement, she will readers of the papers, which was carried unanimously, be as free and unfettered in this respect after marriage as before, and during A vote of thanks to the President was moved by Mr. HARVEY (Liverpool), the whole period of her coverture she will be left entirely open to that ex- seconded by Mr. WINTERBOTHAM (Stroud), and carried upstanding with ceptional influence on the part of her husband which it has hitherto been the cheers. policy of our laws to guard against. For this reason I fear that there is The PRESIDENT briefly returned thanks, and the proceedings terminated. danger of the Act itself defeating the very purpose it was intended to serve. On Tuesday evening a dinner was given by the Hull Law Society at the But my chief objection is that, without really giving very much more pro- Public Rooms, Jarratt-etreet. Mr. Francis Lowe, President of the Hull Law tection to married women than they had before, it has the effect of severing Society, occupied the chair, and about three bundred gentlemen were present. the interests of husband and wife, when the first aim of our legal policy On Wednesday evening a very successful and largely attended ball was should be, as heretofore, to make these interests as far as possible identical. given in the same place, and on Thursday excursions were made to several Before, as I have endeavoured to show, although the untoward circumstance places of interest in the locality. of a bad husband was necessarily guarded against, it was still recognized that the great majority of husbands and wives live happily together in domestic harmony; and the underlying principle of unity was accordingly preserved. But now the majority are made to yield to the minority, for this new legislation appears to be based on the unheard-of assumption that married people

OBITUARY. generally are hostile to each other, and that they are living in a state of domestic strife, each trying to amass a separate competence, which shall be

MR. HENRY BATHURST. safe from the depredations of the other. The idea that their interests can, by any possibility be identical, seems to be utterly discarded. They cease, Mr. Henry Bathurst, solicitor, died at Faversham on the 1st inst. in his seven. for all legal purposes, to be one person ; and henceforth, married women, tieth year. Mr. Bathurst was born in 1813. He was admitted a solicitor in 1853, though living with their husbands under the same roof, and sharing every- and he had ever since practised at Cheltenbam, having for many years been thing with them, are to stand out before the law in almost identically the in partnership with his elder brother, the late Mr. Richard Ba hurst. The same position as a feme sole, retaining everything which they possess, or deceased was a perpetual commissioner for the county of Kent, and be bad an which they may ever possess, quite independently, and having rights and extensive private business. He was for many years auditor for the East Kent interests which may frequently be set up in direct antagonism to those of Poor Law District, and be was also solicitor to the Faversham Starr Bowkett their husbands. It may be said that this won't affect those who are living Building Society, and secretary and solicitor to the Faversham Gas Company. happily together, as they will not be likely to disagree over questions of Mr. Bathurst's death has caused universal regret at Faversham. money, whichever it may technically belong to in point of law. But it seems to me that the Act, throughout the whole of its provisions, holds out inducements to married people to quarrel such as no previous law bas afforded ;

MR. GERALD FITZGIBBON, Q.C. and we know what a fruitful source of contention money is even amongst Mr. Gerald Fitzgibbon, Q.C., of the Irish bar, died on the 27th olt., in his the best of people. We can imagine that a woman prone to extravagance ninetieth year. Mr. Fitzgibbon was born in 1793, and he was for maoy years would be much less likely to act prudently if she is able to do everything engaged in teaching. He was called to the bar at Dublin in 1830, and he quite independently of her husband, and without recourse to him. We can received a silk gown in 1841. He had for many years a large leading busiimagine that a woman prone to be unfaithful to her husband would be much ness, and in 1843 he was one of the counsel for the defence in the O'Connell more likely to yield to temptation, and leave him, when she is provided with State trials. Mr. Fitzgibbon beld for a short time the rank of serjeant-atnieans independently of the slightest control on his part.. Again, it may be law, and in 1860 he was appointed a master of the Court of Chancery in Iresaid that all this may be prevented by settlement. But it must be remem- land. He held that office for nineteen years, and in 1879 (at the age of bered that in very many cases, especially amongst the less wealthy classes, eight-six) he retired on a pension. Mr. Fitzgibbon was the father of the there are

settlements, and that it is to provide for cases in Right Hon. Lord Justice Fitzgibbon. which there are settlements that the law has been changed. It seems to me, then, that I am not in any way overstatiog the gravity of the principle upon wbich this measure is founded, when I say that it strikes at

MR. EDMUND JAMES DANIELL. the vary foundation of our social system ; and I do not believe that it will be

Mr. James Daniell, solicitor (of the firm of Bevan & Daniell), of 40, Chanvery generally acceptable in this country when there has been time for its cery-lane, died suddenly at bis residence, Page Green, Tottenham, on the 2nd provisions to become known, and for its full moment and importance to be inst. Mr. Daniell had been for some time out of health, but bad spent a part of appreciated. That they were not generally known at the time when it became the Long Vacation at the seaside, and was thought to have returned bome very law, I think is sofficiently evidenced by the fact that it encountered but slight opposition in either House of Parliament, and none whatever srom out. He was born in 1814. He was admitted a solicitor in 1859, and be bad been

much better, but on the day above-mentioned be was found dead in bis bed. side. It is, in effect, a great step in advance for that small but ardent body of for several years in partnership with Mr. Arthur. Talbot Bevan, solicitor to politicians who advocate the political equality of women with men, and who the Brewers' Company. Mr. Daniell formerly resided at Forest Gate, and he are constantly striving to obtain for women the political franchise and other acted as solicitor to the Epping Forest Defence Fund long before the ques. so-called rights. That married women should be enabled to vote upon politi- tion of the preservation of the forest was taken up by the Corporation of cal questions, even against their husbands if they feel disposed, is certainly London. the logical consequence of this measure, and I have little doubt that it is simply the prelude to the introduction of other measures for what is popularly termed the emancipation of women, and that if it is allowed to go un

MR. HENRY LAWES. challenged we may reasonably look for other surprises of a like nature before Mr. Henry Lawes, barrister, died at Hawthorne, near Melbourne, on the many sessions of Parliament have elapsed.

7th of August, from disease of the heart. Mr. Lawes was the son of the late A discussion followed in which a very general expression of opinion was Mr. Serjeant Edward Lawes, and was born in 1832. He emigrated to given in opposition to the Act.

Australia about thirty years ago, and be spent some time at the gold-fields. He Mr. HOWLETT protested against a Bill being hurried through at the end was afterwards clerk in the offices of the Master in Equity, and in 1859 he was of the session without adequate discussion.

called to the bar at Melbourne. He was for many years one of the leading Mr. Wake moved, "That in the opinion of the meeting, the Married practitioners in insolvency cases, and he had also a fair share of practice in Women's Property Act should be repealed at the next opportunity.”

equity. He had been several times elected mayor of the municipality of The PRESIDENT was afraid be would be compelled to rule the notion oat Hawthorne. Mr, Lawes leaves a widow and a large family. of order. It was most desirable that politics should not be admitted into the discussion. This was not a question of law and the council could not, except in details, make a suggestion. The Bill so far from having been bastily passed

MR. EDWARD THOMAS SMITH. had been before the council as early as March in the present year, and was

Mr. Edward Thomas Smith, one of the judges of the District Court of almost a reproduction of one that was before them last year.

Jomaica, died on the 26th ult., from angina pectoris, when on the voyage

from Jamaica to England. Mr. Smith was born in 1836. He was educated A FEW SUGGESTIONS FOR THE APPOINTMENT OF OFFICIAL at Tanbridge School and at Brasepose College, Oxford, where be graduated TRUSTEES OF PRIVATE ESTATES.

B.A. in 1858. He was called to the bar at Lincoln's.ion in Hilary Term, Mr. J. TANNER RAY (Bradford) read a paper on this subject.

1862, and for several years went the Home Circuit, attending also the The following papers were not read, their writers not being present :- Central Criminal Cuart, and the Middlesex and East and West Kent “Solicitors and the Pablic,” Mr. F. T. BIRCHAM (London).

Sessions, where he had a fair share of criminal business. He bad been " A Few Thoughts on the Laws which affect a Bastard Eigné,” Mr. s. employed for nearly ten years in the colonial service. He was appointed a WILLIAMS (London).

polioo magistrate at the Falkland Islands from 1873 till 1876, when he was “Legal Education,” Mr. F. A. CHATWIN (Birmingham).

appointed a stipendiary magistrate for the Colony of British Guiana, and



« PreviousContinue »