Ever since the profession had a recognized existence in this country, barristers have been in law presumed not to afford their services with any mercenary view, and have not been permitted to maintain any action for remuneration for advice or advocacy in matters of litigation, or for services ancillary to the duty of an advocate. We need not go into all the learning on this point, which has a history of more than two thousand years, commencing with the relations of patron and client in the Roman Republic, and terminating with the case of Kennedy v. Broun, decided in 1863. All that can be said on the law and history of the subject will be found in that case, reported in 32 Law J. Rep. C. P. 137. There also, in the judgment of Chief Justice Erle, are to be read the advantages which, in the opinion of that eminent judge, flow from the present disability of the advocate to sue for and recover his fees, and the injuries which might be expected to flow from the conversion of gratuities into debts.

As there is no legal contract binding the client to pay counsel for his services, so, pari ratione, there is no legal liability cast upon the counsel to pay damages for negligence, ignorance, or mistake. The law on this point was fully discussed in Swinfen v. Lord Chelmsford, 29 Law J. Rep. Exch. 382; and we need not repeat the lucid and powerful judgment of the late Lord Chief Baron, delivered in that case. Probably there are few barristers who have not, among the earliest matters of study, read and fully considered both these cases. Mr. Norwood and his friends now propose to upset all the law affecting the mutual rights and duties of client and counsel; and the Attorney-General is amply justified in asking the Bar to express its opinion on the bill, and to say whether it is prepared to assent to the change. The bill begins by conferring on barristers in England, advocates in Scotland, and barristers in Ireland, the legal right to recover fees in actions at law, both from the solicitor and the ultimate client. Now, no one will be found so simple as to suppose that the promoters of this bill are oppressed with anxiety to see counsel paid, or that they are possessed of evidence sufficient to prove that counsel, under the present system, go unpaid. We do not assert that there are not here and there some awkward blanks in fee books. Some few solicitors wilfully leave counsel unpaid; in some instances sudden misfortune prevents a solicitor from paying. These blots are inseparable from all human affairs, and it is absurd to expect any class of men to be free from them. But this much, we may say, that, in the long run, no body of unsalaried men in this country, earning their living by profession or trade, suffer such slight losses as barristers from non-payment of the reward of their industry. It may be that solicitors do not, as a rule, pay counsel so promptly as in days gone by. The outer world believes that barristers are paid ready money; and Chief Justice Erle, in Kennedy v. Broun, justified that mistake by declaring that in England the general usage is prepayment. Perhaps it was so when

his Lordship was at the Bar. It certainly is not so now. Indeed, prepayment is in the present day practically impossible, except for briefs in Court, because the payment of each fee for advising, drawing pleas, and for other interlocutory matters, would involve the solicitor in enormous trouble and expense in book-keeping and otherwise. But payment at fixed periods in the year, which is the rule with firms of high repute, is not only feasible, but is what counsel have a fair right to expect.

Now, where the solicitor is unwilling or unable to pay, is it likely that Mr. Norwood's bill will help the barrister to obtain his fees? In the first place, no barrister would sue; and, in the second, the enterprise of suing a debtor who cannot or will not pay is in the present day generally fruitless. But we need not impeach Mr. Norwood and his friends of the offence of desiring to aid barristers in the recovery of their fees. That is not the object of the bill. The real spirit and purpose of the bill is to make counsel liable in damages for non-attendance, for error in advice, for unskilfulness in the conduct of a case, and for such other breaches of contract as every disappointed angry client may set up. The second clause of the bill is directed to this end, and this is the clause to which the Attorney-General will direct the chief attention of the Bar.

We entertain no doubt that the Bar will reject uno ore the propositions of Mr. Norwood. We are at a loss to understand how counsel are to fulfil the duties of their profession with the monstrous nightmare of actions for negligence weighing upon them. But it is unnecessary to anticipate the debate of this day on this point. What most concerns the Bar is not to exhibit apathy in this affair. Every one who can attend the meeting should attend, in order to strengthen the hands of those who are ready to oppose the bill on behalf of the Bar. It is a case in which the laissez-allez policy is apt to prove disastrous; and in which, on the other hand, a strong and united effort will succeed in saving the Bar from a change which, in our opinion, would prove equally injurious to the profession and the public.-The Law Journal.

Is it expedient that rights of action should be given to barristers and solicitors on the one hand to recover fees, and on the other damages for negligence? for the latter action would always in reality be the action of the solicitor. We say emphatically that it is inexpedient. It is universally admitted that such actions, if the bill passed, would be extremely rare, and the idea that the liability would terrify the Bar is simply idle. Counsel very rarely, we hope never, wilfully neglect their duty. When they do, the solicitors have the punishment in their own hands. The Bar, we believe, do not want a right of action to recover their fees. They can always demand them in advance if they like. If they give credit to the solicitor it is in reliance upon the honour of a gentleman, and it 1 [In Scotland it has been hitherto and is so now, and a counsel who acted upon any other rule than that of prepayment would lose caste.]

would be a calamity that the relation between the two branches should rest upon any other basis.-The Law Times.

We have often affirmed, and we repeat now, that upon the nature of the main grievance which Mr. Norwood seeks to remedy by his bill there can be no two opinions among reasonable men. When every excuse has been urged and admitted, it remains simply amazing that a profession which enforces on the whole a high tone of honour among its members should allow counsel to take briefs when they know they cannot attend to them; to receive large fees, and then, without compunction, hand the work they have been paid to do over to other counsel, who may or may not be competent, but whom the suitor would never have chosen to conduct his case. The evil is a great and a growing one; and the practical question at present is whether it shall be abated by the voluntary action of the Bar, or by pressure from without. We have long urged the adoption of the former course, and we hope that the result will show that the Bar are prepared to set themselves to devise a remedy for a state of things which we do not hesitate to say is inconsistent with the practice which should prevail among highminded gentlemen. That the main grievance is susceptible of remedy is obvious from the fact that in one of the divisions of the High Court it has really no existence. The suitor in the Chancery Division may, as a rule, make sure of being represented at the hearing of his case by the counsel he has selected. There is no doubt that the adoption of a similar rule in the Common Law Divisions would be attended with very much greater difficulties than attach to it in the Chancery Division. But are these difficulties insuperable? If the rule cannot be adopted in precisely the same form, why should not the Bar agree that in all cases where a counsel is unable personally to attend a case he shall, if time allows him, give his client the opportunity of placing his brief and fees in other hands, or, if it does not, shall hand over both the brief and the fees? We venture to say that if some such rule as this could be established, and it were also resolved that any objection to the fees shall be taken before acceptance of the brief, and a committee of barristers were elected to decide questions arising out of these rules, the grievances complained of would speedily disappear. We very earnestly commend these suggestions to the consideration of the Bar.

As to Mr. Norwood's Bill, we cannot help doubting whether its framers have clearly understood the evils to be remedied. There can be no advantage in making a legislative net with meshes so slender as to let all the big and devastating porpoises tear their way through, while the inoffensive sprats only are captured. The barristers who hand over briefs and neglect their work are the leaders, who can practically make what terms they like with their clients. Is it not absolutely certain that these gentlemen would at once contract themselves out of the proposed Act? What has the VOL. XX. NO. CCXXXII.—APRIL 1876.

Q

leader to do to evade the Act but to instruct his clerk to accept briefs only on the express condition that if he finds he cannot attend to them he may hand them over to a substitute? Moreover, in reference to court work it is useless to conceal the fact that the difficulty of proving negligence would be almost insuperable. The client loses his case; how is that event to be brought home to the counsel who handed over his brief? Would the judge, who of course would be called as a witness to testify that if the case had been differently handled by the substitute the result would have been different, be likely to confess that his decision or direction to the jury was wrong, because, depending for his law or for his capacity of dealing with facts upon the addresses of counsel, he was misled by the inefficient substitute. If the result of the case depended solely on the ability of counsel, the matter would be differenteven here, however, it is to be remembered that an action for negligence against a solicitor rarely succeeds-but when it is borne in mind that the result of a case depends upon the sufficiency of instructions to counsel, the way in which the case is got up, the ability and knowledge of the judge, the intelligence and freedom from bias of the jury, it will be seen that it is little short of absurd to say that the loss of a case by negligence could be brought home to counsel.-The Solicitors' Journal.

Glasgow Police Magistrate.-What has come over this business? On the 13th of August last, the Royal assent was given to a bill which provided that it should "be lawful for one of Her Majesty's Principal Secretaries of State, on the application of the Lord Provost, Magistrates, and Council of the city and royal burgh of Glasgow, to appoint a police magistrate of the said city and royal burgh, and to fix the salary to be paid to such police magistrate not exceeding £1000 by the year, and not less than £500 by the year." The application was made, and after some delay the salary of the magistrate was fixed. Three or four months ago it came to be generally known that advantage was to be taken of the permission allowed by the Act, and that an appointment was to be made immediately. Several gentlemen applied for the office. The names of some of them, and more than all of them, were mentioned in the newspapers. No appointment has as yet been made. Always and on principle we are disposed to restrain comment on the actions of administrators. There are many reasons for appointment or disappointment, as the case may be, which are material in the highest degree, but which cannot be revealed without injury to the public or hurt to individuals. In the present case we cannot divine any reason for the delay. Nobody has suggested that there are no suitable candidates. And if the office is not to be filled up at all, what was the use of passing an Act enabling the Government to do nothing? Governments have failed to comply with the provisions of Acts of Parliament requiring them to appoint certain officials, such as Principal

An Act intituled "An Act to enable

not to

Clerks of Session. appoint a principal Clerk of Session" we could understand. But we do not see the sense of passing an Act to enable a Principal Secretary of State not to appoint a Police Magistrate for Glasgow. Is it that those who have the appointment in their hands require a process of wakening? Surely some explanation should be given as to whether an appointment is or is not to be made.

Vacation Arrangements-Spring Circuits, 1876:

West.-Lords Justice-Clerk and Young. Stirling-Friday, 24th March, at 11 o'clock. Inverary-Wednesday, 3rd May, at 11 o'clock. Glasgow-Monday, 8th May, at 11 o'clock. John Burnet, Esq., Advocate-Depute; Æneas Macbean, Clerk.

South.-Lords Deas and Mure. Jedburgh-Thursday, 23rd March. Ayr-Tuesday, 28th March. Dumfries-Friday, 31st March. Roger Montgomerie, Esq., Advocate-Depute; William Hamilton Bell, Clerk.

North.-Lord Ardmillan. Dundee-Wednesday, 29th March, at 11 o'clock. Perth-Tuesday, 4th April. Aberdeen-Friday, 7th April. Inverness-Tuesday, 11th April. James Muirhead, Esq., Advocate-Depute; J. M. M'Cosh, Clerk.

Box Days.-Thursday, April 6; Wednesday, April 26.

Bill Chamber Rotation of Judges.-Monday, March 20, to Saturday, April 1-Lord Neaves. Monday, April 3, to Saturday, April 15Lord Curriehill. Monday, April 17, to Saturday, April 29-Lord Ormidale. Monday, May 1, to meeting of the Court, 12th MayLord Gifford.

Court Days in Vacation.-The Lord Ordinary on the Bills will, on Wednesday, 12th April, and on Tuesday, 2nd May, sit in Court at 11 A.M. for the disposal of motions and other business; and Rolls will be taken up on Monday, the 10th, and Saturday, the 29th of April, all in terms of the "Court of Session Act 1868" and relative Act of Sederunt.

The School Board Elections.-The Scotch Education Act of 1872 has been one of the most lucrative Acts for the lawyers which has been passed in recent times. The regulations issued by the Scotch Education Department for the conduct of the elections now going on have been constructed on the same model. To an outsider it is difficult to see why there should be different rules as to voting in parishes and in burghs. In burghs the Ballot Act applies. In parishes the regulations provide that the voting shall be carried on under a modified or mutilated ballot system. In parishes no provision is made for the case of illiterates. In parishes the candidate or his agent is allowed to be present in the polling station. In parishes the candidate requires to take a declaration of secresy.