to counsel which have not such mark of receipt; inasmuch as the neglect of it causes injury to the advocate as well as to the client; to the client, in that he is sometimes charged with fees which the lawyer may have returned as not deeming them well earned, or from the poverty of the party may have declined to ask; to the lawyer, in that it enables the unworthy attorney to recover counsel's fees which he has not paid and perchance shall never pay."

The first and second of the following rules are open to comment:

"First. He is careful to return his fee in any matter in which, from accident or other cause, he has given no labour or thought: the contrary practice in which regard has deservedly brought much scandal upon his calling.

Secondly. He is faithful to the side which first retains him, though it may be they neglect the wonted courtesy of continuing to ask his services: considering it safer in such cases to let ingratitude, and it may be dishonesty, pass unnoticed, than himself to run the risk of being false to one to whom he has engaged his services. Thirdly. He is watchful not to countenance the making of unnecessary motions, or the taking of superfluous proceedings, only because his own and the attorney's costs will be charged by the court to the account of the opposite party. And this the rather, in that it is to be feared too many motions in courts have their origin herein, and by it robbery is daily practised unpunished in the very precincts of the temple of justice."

As to the first, undoubtedly briefs are frequently delivered and fees paid to counsel, with full knowledge of the contingencies that may prevent them from giving their full attention to the case, or even attending the trial at all; but if no labour or thought has been bestowed, we agree with Mr. O'Brien that the fee should be returned.1 As to the second, the professional rule is so involved in doubt and difficulty, that the counsel must decide for himself in each individual case; but he must take care not to sacrifice the useful privileges of the bar from an over-scrupulous delicacy. It will never do to leave a litigant at liberty to prevent a counsel, whom he does not choose to employ himself, from being employed against him, by giving a brief in a preliminary proceeding, or even taking an opinion on the merits. If this

1 Mr. O'Brien confirms his views by an extract from our article, 4 L. M. 417, on The Practice relating to Retainers.

were allowed, the party first in the field might retain or silence all the best counsel at a cheap rate.

Motions for costs are the disgrace of the profession, and it is to be wished that the judges would take a little more pains in disposing of them.

"The Lawyer's Courtesy" (Chap. 30), has for its principal objects three classes of persons: the judges, his brother barristers, and the attorneys. The judges are to be treated with all honour; but should they betray undue impatience or partiality, he is to remonstrate with them respectfully but fearlessly. His brother barristers are to be treated with kindness, and aided when occasion may require; but he is not to give his sanction to any thing wrong, either an unworthy act or profane jest.

66

Thirdly, in his intercourse with attorneys. These, in despite of the ill name which the evil practices of too many among them have brought upon their brotherhood, he regards with esteem, and considers their duties scarce a whit inferior in dignity to his own. But as elsewhere, the corruption of the best engendereth the worst, so is it here and while he who is true to his own conscience, and faithful to his client's interest, is as gold thrice tried in the fire; he who is false to the one, and faithless to the other, stinks in the nostrils of all good men. In his intercourse with an attorney, the lawyer's manner is according to his mind. If he have not full confidence in his integrity, he is wary that he be not betrayed, by word or look, into approval; but if, on the other hand, he meet one in whom he may confide, he freely communes with him as with a friend and fellow-worker."

There is little necessity for such recommendations now, the two branches of the profession being on a perfectly good understanding with one another. In our review of "The Adventures of an Attorney," we endeavoured to correct some prevalent mistakes on this subject.1

The chapters on The Lawyer in his various other relations, public and private, are little more than general exhortations to goodness and holiness; highly creditable to the author, but not of a nature to exercise much practical influence on our readers.

H.

1 22 L. M. 378.

ART. II.-ADMINISTRATION OF ASSETS.

WHILE the common law prevailed in its ancient strictness, the heir was rarely subject to the debts of the ancestor. If the evidence of the debt was a document under seal, and one in which the obligation was specifically cast upon the heir, then he was bound to the extent of the realty which descended upon him. But if that evidence1 was not under seal, or contained no mention of the heir, or if the ancestor devised his realty to some one who was not his heir; under any of these circumstances there was no proceeding in law or equity, by which the realty could be made available for the benefit of creditors. One infringement upon these rules took place in the year 1691, when it was enacted that devises should be treated as fraudulent and void as against specialty creditors; that at their suit the devisee as well as the heir should be liable; and that, if no will was made, and the land aliened by the heir, he should be liable to the full extent of its value. Another innovation was made in the year 1676,3 when it was enacted by the Statute of Frauds that lands held in trust for a judgment debtor should be liable to execution by the sheriff, and that, in case of the debtor's death and of the descent of the land to the heir, the heir should be liable for it in the same manner as he would have been if it had been a legal estate. By a section of the same statute it was enacted that an estate pur autre vie coming to the heir by reason of special occupancy, or, in case there was no special occupancy, coming to the personal representative by virtue of the grant, should be attended with a similar liability. Another step in favour of creditors was made in the year 1807, by the act called Sir Samuel Romilly's Act. Under that act the land of traders became liable to their simple contract as well as to their specialty creditors, while at the same time the privilege of precedence was reserved to the latter class. Still more

Lacom v. Mertins, 1 Ves. sen. 312.

2 See 3 & 4 W. & M. c. 14. See re-enactment by 11 Geo. IV. & 1 Will. IV. c. 47, s. 9.

3 29 Car. II. c. 3, s. 10.

4 Sect. 12.

5 47 Geo. III. c. 74. See re-enactment by 11 Geo. IV. & 1 Will. IV. c. 47, s. 2,

important progress was made in 1833,1 when the land of all debtors, whether traders or not, was made liable as well for debts of simple contract as for debts of specialty.

To

The last material alterations were effected by the 1 & 2 Vict. c. 110. Under the old law judgments were defeasible by means of a power. For instance, if lands had been conveyed to the common uses to bar dower for the benefit of a person who afterwards became a judgment debtor, the judgment attached to the fee simple, but was altogether impotent against an estate created by the exercise of the power. cure this absurdity, this statute empowers the sheriff to deliver execution of all property over which "the person against whom execution issues, or his trustee, has the exclusive power of disposal." A writer of distinguished ability3 has suggested a doubt, whether property subject to a joint power comes within the grasp of the statute. The complete operation of the statute upon all land subject to a separate power has, we believe, been universally admitted. In further aid of the creditor, lands of copyhold and customary tenure are in the same act made extendible; the entirety, instead of the mere moiety, of the land is subjected to extent; and to these common law liabilities is added the liability arising from an equitable charge, which is to be valid "against the person against whom the judgment is entered up, and against all persons claiming under him after such judgment, and also against the issue of his body, and all other persons whom he might without the consent of any other person cut off and debar from any remainder, reversion, or other interest in or out of the said lands." The judgment creditor is to have the same remedies in equity as he would have had if the debt had been made a charge. Judgments, therefore, will now be effectual against a tenant in tail.

We have given this short outline of the history of this part of our law, with a view to the consideration of what are and what are not legal assets. Caution is required in considering the effect of the 3 & 4 Will. IV. That act does not operate

1 3 & 4 Will. IV. c. 104.

2 This act was amended by 2 & 3 Vict. c. 11; but the amendments are imma terial for our present purpose.

3 Hayes on Conveyancing, vol. i. 328.

4 Sect. 13.

in cases in which testators have by will specially charged their land with the payment of debts. The nature of this charge we shall presently explain. In the absence of it, the landed property of every person is liable to his debts at the time of his decease, provided he was entitled to it beneficially for an estate in fee simple, and the legal estate in it was vested in himself or in some one as trustee for him. We need hardly observe, with reference to the commercial relations of modern times, and to the notions now prevailing upon different kinds of property, how great an improvement has been thus effected over the ancient system, by which land was protected from all except a very limited class of creditors.

Personal assets are thus described in a book of great authority: "All those goods and chattels, actions and commodities, which were of the deceased in right of action or possession as his own, and so continued to the time of his death, and which after his death the executor or administrator doth get into his hands as duly belonging to him in the right of his executorship or administratorship, and all such things as do come to the executor or administrator in lieu or by reason of that, and nothing else, shall be said to be assets in the hands of the executor or administrator to make him chargeable to a creditor or legatee." This definition of personal assets includes equitable as well as legal assets. In order to confine it to the latter, it must be limited, according to the definitions commonly received, to those assets which come into the hands of the executor or administrator by virtue of proceedings at law, or which, coming into his hands by virtue of proceedings in equity, are made legal assets by statute. We believe that this description will include all legal assets, excepting two or three species of property which we shall notice in their place. It includes many different kinds of property, which never were in the hands of the deceased: for instance, a lease, covenanted to be given on a day before which the death of the deceased happened to occur; merchandize, for which the deceased had concluded a bargain in his lifetime; chattel interests in land vested by way of remainder; the increase of cattle, or the profits upon any lease or business undertaken by the deceased. In the 1 & 2 Vict., which has 1 Touchst. 496; Will. Ex. & Ad. 1012.

2 Wil. Ex. & Ad. 1015.