function of the jury is expressed to be "to settle the amount." Accordingly in the London and North-Western Railway Company v. Smith a question arose whether the act applied to a case where the title to compensation was disputed. The defendant in that case, on the allegation that his lands were injuriously affected within the 68th section, had served the company with a notice claiming to be paid 20001. compensation, or in default to have the amount settled by a jury. The company declined to summon a jury, and filed their bill charging that there was no provision in any act of parliament, by virtue of which it could be determined whether the defendant was or not entitled to any compensation, and that such question could not be determined without the aid of a court of equity, and praying that the defendant might be restrained from taking any proceedings against the company under his notice. Lord Cottenham, C., reversing an order of Shadwell, V. C. E., granted the injunction, with liberty for the defendant to bring an action for the purpose of trying his right. In the East and West India Docks and Birmingham Junction Railway Company v. Gattke, where the bill was framed upon the model of that in the former case, Wigram, V. C., upon the authority of Lord Cottenham's decision, granted a precisely similar injunction. This injunction has since been dissolved by the Lord Chancellor with costs.

It is true that in dissolving this injunction, Lord Truro disclaimed any intention to overrule Lord Cottenham, and took a distinction between the cases, to the effect that in Smith's case the title to compensation depended upon a mere question of law; whereas in the case before him, if the defendant had in fact sustained damage from the causes alleged, he was "entitled to compensation." But it is impossible to examine the two cases at length without coming to the conclusion that the discrepancy is not confined to the facts, and that the Chancellor's argument is in many respects directly and intentionally at issue with that of Lord Cottenham.

Lord Cottenham's argument was briefly this:-The court, in the exercise of a very proper and wise jurisdiction, and one clearly within its power, had interfered against companies, and ought to interfere against the public, so as to keep all parties within the powers which these and similar acts conferred. This act had given powers which might be exercised so as to be most stringent and oppressive towards companies, who might be compelled by any claimant having a perfectly unjust claim to go before a sheriff's jury, or to be fixed with the whole sum claimed. The law, as it stood before the act, provided means for determining the question of right to compensation first, and

afterwards the question of amount. Then came the act, which to correct a supposed evil created a much greater one, by reversing this order of proceeding. This state of the statute law alone would be quite sufficient to justify the court in interfering by injunction. The injunction was asked on the ground that the party enforcing the act did not fall within it. The court would interfere to have this question, which was one of law, determined, and for that purpose would place the company in the situation they would have been in if they had applied to the Court of Queen's Bench for a mandamus.

Lord Truro does not deny the jurisdiction of the court "to keep all parties within the act;" but he denies that a party, whose title to compensation is disputed, is therefore excluded by the act. So interpreted the act had nothing anomalous in its principle. It was incident to every common law complaint of injury and damage, that the existence of the injury, right to compensation and the amount of the damage alleged to have been sustained, are tried and decided in one proceeding and upon one trial. The requisition of a precept in this case was analogous to the commencement of an action; and upon execution of the inquisition it was competent to the tribunal to decide upon the question, whether any injury within the meaning of the act had been inflicted by the company, and whether any damage had been sustained in consequence. It had been assumed

in the argument that the jury had no jurisdiction to decide upon the question of right; but during the many years that compensations have been assessed-ever since the passing of the London and West India Docks Act, fifty years ago-questions upon the construction of the compensation clauses had constantly arisen before the Recorder of London and other presiding officers, and of necessity they had been decided by him and the jury. The jurisdiction of the jury had been frequently recognized (Reg. v. The Lancaster and Preston Railway Company, 6 Q. B. 759; and Reg. v. The Eastern Counties Railway, 3 Railw. Cases, 466; and 2 Q. B. 347). The assumption therefore that the jury had no jurisdiction to construe the act upon the point, whether the claim made was within its provisions, was founded in mistake. Then as to the supposed inconvenience of the course prescribed by the act, the principle of Lord Cottenham's decision, if extended to this case, would subject the claimant (however small the claim may be) to a suit in chancery, in which the question involved is admitted to be a question of law, which the court ought not to decide, and for this court to send the party to a court of law for decision by an action. The proceedings of this court are liable to appeal to the House of Lords,

when, if the party succeeds in his appeal, he gets no costs. The action is subject to a bill of exceptions, to a writ of error in the Exchequer Chamber and to the House of Lords. The delay by such a course of proceeding cannot be predicted; and if in the result the case be determined in favour of the claimant, he has then to commence the prosecution of his compensation; and all this is brought upon the claimant by an attempt on the part of the legislature to protect him from delay and expense. The interest of the claimant is expedition, that of the company delay; and the company, by making an example of one claimant, would unquestionably succeed in deterring many others from advancing their claims.

The title in Gattke's case depending solely upon a question of fact, it may be doubted how far Lord Truro's judgment, so far as it applies to a claim raising mixed questions of law and fact, might be considered extra-judicial. It is clear, however, that to such a case the principle of Lord Cottenham's decision would not now be extended, and that an injunction would most probably be refused in any case except where, as in that of Smith, the title to compensation raises a mere question of law. The Chancellor's judgment is further important, as indicating his intention to construe this and similar acts of parliament "liberally in favour of the public, and strictly as against the company."

It may admit of question, whether these bills might not have been successfully met by a demurrer, for in each case the defendant's title to compensation was denied by the bill.

TRUSTEE-SOLICITOR-PROFESSIONAL CHARGES.

Cradock v. Piper, 1 M'N. & Gor. 664.

LORD COTTENHAM's decision in this case has defined the limits of the rule, which in general deprives a trustee, being also a solicitor, of professional remuneration.

The history of the law on this subject is briefly this.

Lord Hardwicke states it to be an established rule, that a trustee, executor or administrator, shall have no allowance for his care and trouble; the reason of which seems to be, for that on these pretences, if allowed, the trust estate might be loaded and rendered of little value;" Robinson v. Pett (3 P. Wms. 251). Moreover, it is the duty of a trustee to protect the interests of the estate, and if allowed to transact the business of the estate, and then to claim compensation, his interest would

be opposed to his duty, and as a matter of prudence the court will not allow a trustee to place himself in that situation. And the rule is laid down by Lord Cottenham as being absolute and not dependent upon the facts of the particular case:-"It is not because the trust estate is in any particular case charged with more than it might otherwise have to bear, but because the principle, if allowed, would lead to such consequences in general.' (Moore v. Frowd, 3 My. & Cr. 50); and by Alderson, B., "It has been said that the party in this case is respectable; it may be so, but it is in order that parties may be respectable that they sustain the loss." (Fraser v. Palmer, 4 Y. & C. 518.) Such is the general rule and the principle on which it is based. In New v. Jones (6 Leg. Obs. 410), Lord Lyndhurst, C. B., applied it to the case of a solicitor:-" In point of prudence and propriety, and as a guard over the estate, I am of opinion that it would not be proper that a solicitor who was a trustee should be distinguished from an ordinary trustee. If a trustee, who is a solicitor, acted as a solicitor, he is not entitled to charge for his labour-he is entitled only to be paid his costs out of pocket." In Moore v. Frowd (3 My. & Cr. 50), the instrument creating the trust directed that the trust monies should be applied (inter alia) in payment of all expenses, disbursements and charges to be incurred, sustained or borne by the trustee, " either in professional business, journies or otherwise;" and that the trustee might retain all reasonable costs, charges and expenses which he might sustain or be put unto, such costs, &c. to be reckoned, stated, and paid as between attorney and client. But even these terms were held by Lord Cottenham insufficient to exempt the case from the application of the general rule. These provisions contained nothing peculiarly applicable to the case of the solicitor being also trustee. It could not, therefore, be assumed that the intention was to provide for some other mode of dealing with that union of characters than what the law would have enforced. In Collins v. Carey (2 Beav. 128), Lord Langdale, M.R., applied the same principle to business transacted by a solicitor's firm in which a trustee was a partner; and in Christopher v. White (10 Beav. 523), to a similar case, although the business was transacted by a partner who was not a trustee, "for the business was done for the trustee's profit as partner, and the court would not allow a trustee to say to his partner' You shall act as solicitor and earn all the profit you can for the concern.'

So far the rule was clear; but it was still an open question whether it extended to the case of a trustee employed and acting as solicitor in behalf of his cestui que trust or of his co-trustees. In Carmichael v. Wilson (2 Moll. 537, and 2 Dow. & Cl. 51), and in Fraser v. Palmer, a distinction had been taken in favour

of a solicitor so employed; but until Cradock v. Piper the point was not considered as decided.

In Cradock v. Piper one Watson had acted as solicitor in several suits relating to a trust estate of which he and three others were trustees-in one suit as solicitor for the plaintiffs, the trustees-in others for cestuis que trust who were defendants, and also for himself and his co-trustees who were also defendants. The Taxing Master disallowed the costs claimed in all these relations. Upon a petition by Watson, complaining of this decision, and praying that the taxation might be reviewed and the several charges allowed, Shadwell, V. C., referred it back to the Master to review his report. From this order the cestuis que trust now appealed. The policy of extending the rule as a security against abuse was a strong argument; a trustee, being also a solicitor, was likely to have extended to him the exclusive management of the trust property, and might, therefore, have discretionary powers to institute, frame and manage suits a discretion too likely to be influenced by the profits which might accrue to him in respect of costs of other parties for whom he might act, as of his own. On the other hand, any such rule might easily be evaded; a name was easily borrowed, and practically the supposed security would not be very effectual. Lord Cottenham, in giving judgment, noticed these arguments, but declined to determine the case before him with reference to the question of policy. It was the duty of the court, he said, to ascertain whether the rule had been so extended, rather than to speculate upon any advantages which might be thought likely to arise from its extension. The rule was that a trustee should not make his office a source of remuneration-but was acting for other parties any part of the office of a trustee? If A. is a trustee of a fund, and employs himself, this is clearly within the rule; but it is not the same thing if there are other parties and they come and employ him, though this employment may arise incidentally out of his being a trustee. So far as the cases of New v. Jones, Moore v. Frowd and Carmichael v. Wilson extended, the rule as laid down and acted upon was confined to cases in which the business of the solicitor was the proper business of the trustee, but it was no part of the business of a trustee to assist other parties in suits, and to such cases, therefore, the rule, as hitherto laid down, did not apply. In Fraser v. Palmer the distinction had been taken and properly dealt with. There the trustee was allowed the costs of the suit in which he acted as solicitor for others, and disallowed the costs of the suit in which he acted for himself. "I am therefore of opinion," concluded his lordship, "that the rule does not