Page:Harvard Law Review Volume 9.djvu/470

442 442 HARVARD LAW REVIEW. Under the Law of Distress Amendment Act, 1895 (S^ & 59 Vict. c. 24), a bailliffs certificate may be cancelled by a judge of the County Court that granted it, without the necessity of proving extortion or misconduct as heretofore. A person who distrains without a certificate incurs a penalty of £, besides being, as before, liable for trespass, and if goods exempt from distress are seized they or their value can be summarily and quickly recov- ered, instead of being tardily replevied. The Mortgagees Legal Costs Act, 1895 (58 & 59 Vict. c. 25), enables a solicitor mortgagee or transferee to charge profit costs. It was considered by the judges that, though such a solicitor mort- gagee might add out of pocket costs to his security, he could not add profit costs, not because of any fiduciary relationship, but be- cause the costs had never been incurred. The bargain was that the mortgagor might redeem on payment of principal, interest, and costs ; i. e. costs incurred by the mortgagee which did not include remuneration for his own personal trouble.^ The solicitor mortgagee could of course have employed some one else to do the work, and then the charges would have had to be paid, but if he voluntarily chose to do the work himself he was considered to do it as mortgagee, and not as mortgagee's solicitor. Rightly or wrongly, this was considered by the persons concerned as the acme of absurdity and the height of injustice, and in future the grievance will be removed. The mortgagee solicitor is to be looked upon as two persons, viz. a mortgagee and a solicitor, the former of whom can instruct the latter or his firm profes- sionally, and the latter of whom, or his firm, can charge the usual profit costs. Without furthe detail it may be stated that the Act has removed the disabilities attaching to mortgagees from a solicitor's shoulders, leaving the rest of the community subject thereto. It seems quite clear that it has not removed the corre- sponding disabilities attaching to trustees ; and now that a little correspondence has made this grave oversight plain to the profes- sion, there is like to be a fresh outcry. It is so usual to have a special clause enabling solicitor trustees to charge profit costs even for work that would ordinarily be done without the intervention of a solicitor, that the chief efi"ect of the new concession which is bound to come will simply be to save draughtsmen the trouble of inserting the clause. The clause in question often extends to all 1 See Iti re Roberts, 43 Ch. D. 52; In re Doody, 1893, i Ch. 129, and cases therein cited.