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Judicial Salaries.—Accountant-General's Office.-City of London Small Debts Act.

and would be overpaid for doing it at £500. a year. Such, however, is not the scale of the Court of Chancery; the clerks of these fortunate gentlemen receive more than the outside of the utmost remuneration that ought in fairness to be awarded to their masters, and are down in the account before us for no less a sum than £6,894 14s. 9d. per annum.

"Next to the Registrars in order, but above them in dignity and emoluments, come those important functionaries, the taxing Masters.' There are six of them, and their collective annual cost to the "suitors' fee fund' (for all these salaries, be it understood, are charged either on the suitors' fund or the suitors' fee fund') is £12,000 sterling a year, or £2,000 a piece. This is not all. Some of these gentlemen are also, we believe, in addition to their official £2,000 per annum as taxing Masters, in the receipt of compensation as sworn clerks,' of the recently abolished 'six clerks office,' amounting to sums larger than their salaries as taxing Masters. But taking them at £2,000 a year, let us ask whether, according to the Chancellor's standard, they are over or under paid? Their principal duties are sufficiently indicated by their official title; they are mainly occupied in the purely ministerial and routine duty of taxing, that is, assessing, solicitors' bills of costs. This may not be a pleasing duty. It, no doubt, lacks variety and excitement; it affords little scope to the energies of the intellect, or the play of the fancy; but we are not in the regions of sentimentalism. The sole question is, whether the work, such as it is, might not be quite as competently done for a fourth, or, at the outside, for a half of the money. We have no doubt it might, and better too. The fact is, you employ superior men (as some at least of these taxing Masters are) in routine drudgery, they loiter over an occupation in which they feel no interest, and soon fall into arrears, which inferior and more mechanical persons would avoid. Unless we are very much mis-informed, complaints of this kind are by no means infrequent with reference to the present state of the business in the office of taxing Masters."

175

of remuneration. The officers should be placed above temptation, and the salaries should be such as will secure the faithful services of men of respectable station in society.

ACCOUNTANT-GENERAL'S OFFICE.

TIME OF CLOSING FOR THE VACATION.

WHEREAS it is proper that the accounts kept by the Accountant-General of this Court should be examined and compared in order to settle the same; and whereas it will require considerable time to perfect such examination, and it is necessary that a time should be appointed for closing the books of accounts of the said Accountant-General for the purposes aforesaid, I do order, that the books of the said Accountant-General be closed from and after Wednesday, the Twentieth day of August next to Tuesday the Twenty-eight day of October next, inclusive, excepting upon the days and for the purposes hereinafter mentioned, in order to adjust the accounts of the suitors with the books kept at the bank; and that during that time no draft for any money except as hereinafter provided, or certificate for any effects under the care and direction of this Court, be signed or delivered out by the said Accountant-General, or any stocks or annuities accepted or transferred by him relating to the suitors of this Court. And that no purchase, sale, or transfer be made by the said Accountant-General, unless the order, request, or Registrar's certificate be left at his office, on or before Monday the Eleventh day of August next. And that no order for payment of any money out of Court, which may be then in Court, be received at the Accountant-General's office after Wednesday the Thirteenth day of August next. Provided, nevertheless, that the office of the said Accountant-General shall be open on Wednesday the fifteenth, Thursday the sixteenth, and Friday the seventeenth days of October next, for the delivery out of any regular interest drafts, which have become payable in respect of the October dividends, and of any other regular interest drafts which shall have become payable during the closing of the office as aforesaid. And to the end that the suitors may have notice hereof and apply to the Court, as there shall be occasion, to have money paid to them out of the bank, or stocks, or annuities transferred to them before the said Twentieth day of August next, I do order that this Order be affixed up in the several offices of this Court.

June 25th, 1856.

CRANWORTH, C.

It is evident from many of these remarks that the writer is unacquainted with the various and important duties which these officers have to perform, and the extensive knowledge they must possess of the rules of equity and the practice of the court. The chancery commissioners in their last report have devoted a large space to the duties of the registrars and their clerks, and have given in the appendix the voluminous evidence taken before them regarding that department of official business. "Comparisons CITY OF LONDON SMALL DEBTS ACT. are odious," or it might be asked whether in ninetynine cases out of every hundred, the clerk of the county court could not as well, or better, perform the duty of the judge in ascertaining the amount of the petty claims in question, and fixing the times for payment of the several instalments?

It is proper also to observe that in the Court of Chancery the several officers have the charge of an enormous amount of property. There is, we believe, at the present time not less than sixty millions of money in court, and we are informed that on the average seven millions are paid into court, and about the same amount paid out. In such vast transactions there should be no niggardly apportionment

EXCLUSIVE JURISDICTION TO £50.

Ir is not generally known, or remembered, that if a
debtor reside within the imaginary walls of the city
of London, he cannot be sued in the superior courts,
unless the debt be more than £50, under the penalty
of recovering the debt only, and no costs.
A cre-
ditor, on the west side of Temple Bar, cannot
employ his attorney to sue a debtor for £50, except
in the city small debts court, if such debtor reside
on the east side of the Bar. So that the law, within
the city of London, as to the extent of jurisdiction,
differs from the whole of the rest of the kingdom.
This extraordinary result arises from the conflict of

176

·City of London Small Debts Act.—Suggested Amendments in the County Courts Bill.

two sections in the city small debts act, the one limiting the concurrent jurisdiction of the superior courts to £20, and the other to £50. The city of London act is a local act; and it is singular that the

general jurisdiction of the superior courts, in actions from £20 to £50, should be ousted by this local act; but so it appears to be; for the Court of Common Pleas has decided that, if the plaintiff in an action on contract in the superior courts, for which a plaint might have been entered in the local courts, recover not more than £50, a suggestion may be entered to deprive him of costs.

Considering the importance of the question, and the opportunity now afforded of amending what never could have been intended by the legislature, we subjoin an abstract of the report of the decision in the case of Castrigne v. Page, 13 Com. B. 458.

This was an action by the indorsee against the indorser of a bill of exchange. It appeared that the plaintiff dwelt at No. 344, Regent-street, and the defendant at No. 14, John-street, Minories, in the city of London. The plaintiff having obtained a verdict for £27 14s., the defendant moved to enter a suggestion to deprive him of costs, under the 15 & 16 Vict. c. 77, s. 119 (City of London Small Debts Extension Act, 1852).

This section enacts that, "if any action shall be commenced, after the commencement of this act, in any of her Majesty's superior courts of record, for any cause other than those lastly hereinafter specified, for which a plaint might have been entered in the court, holden under the provisions of this act, and a verdict shall be found for the plaintiff, for a sum not more than £50; if the said action is founded on contract, or less than £5, if it be founded on tort, the said plaintiff shall have judgment to recover such sum only, and no costs; and, if a verdict shall not be found for the plaintiff, the defendant shall be entitled to his costs as between attorney and client, unless in either case the judge who shall try the cause shall certify, on the back of the record, that the action was fit to be brought in a superior court.

The 120th section provides that, "if in any action commenced after the passing of this act, in any of her Majesty's superior courts of record, in covenant, debt, detinue, or assumpsit, not being an action for breach of promise of marriage, the plaintiff shall recover a snm less than £20; or if in any action commenced after the passing of this act, in any of her Majesty's superior courts of record, in trespass, trover, or case, not being an action for malicious prosecution, or for libel, or for slander, or for criminal conversation, or for seduction, the plaintiff shall recover a sum less than £5; the plaintiff shall have judgment to recover such sum only, and no costs, except in the cases hereinafter provided, and except in the case of a judgment by default; and it shall not be necessary to enter any suggestion on the record to deprive such plaintiff of costs; nor shall any such plaintiff be entitled to costs by reason of any privilege as attorney or officer of such court, or otherwise."

Jervis, L. C. J. said "I am of opinion that a suggestion must be entered in this case. If we were at liberty to speculate as to what would be most conducive to the benefit of the public, and as to the reasons which induced the legislature to enact, as they have done, instead of endeavouring to put a

construction upon the words we find, much might be said in favour of the view which has been presented by Mr. Pulling; because one cannot well see why a different rule should prevail in the city of London,

from that which applies to all other parts of the kingdom. When one sees that this statute was consequent upon those which were passed for the general improvement in the administration of the law, one would not have expected that those who had charge of the bill in its progress through the Houses of Parliament, would have committed so palpable a fraud upon the legislature. But so it is; and this act differs, in a very important particular, from the general county courts' acts. If the two provisions in question had been found in two separate acts of Parliament, applying what Mr. Justice Burton calls the golden rule of construction, to give to all the words of an act of Parliament their plain and ordinary meaning, unless such a construction leads to absurdity, or injustice, we might possibly have so altered the words as to avoid the absurdity and incongruity we find here. But seeing that there are two sections in the same act of Parliament, immediately following each other, which, although apparently conflicting, received the Royal Assent at the same moment, we are bound, if it be possible, to give effect to both. Now, the 119th section, in substance, provides, that if any act shall be commenced in a superior court, for which a plaint might have been entered in the court, holden under the provisions of that act, and a verdict shall be found for the plaintiff, for a sum not more than £50, if the action is founded on contract; or less than £5, if founded on tort, the plaintiff shall have judgment to recover such sum only, and no costs. Then comes the 120th section, which provides, that if any action commenced in a superior court, in covenant, debt, detinue, or assumpsit, not being an action for a breach of promise of marriage, the plaintiff shall recover a less sum than £20, or, if in trespass, trover, or case, not being an action for malicious prosecution, libel, &c., the plaintiff shall recover a less sum than £5; he shall have judgment to recover such sum only, and no costs, except where the presiding judge shall certify, and no suggestion shall be necessary. The result is, perhaps, absurd; but the two sections are not so inconsistent as to justify us in declining to put a construction upon one of them. Under sect. 119, in the cases provided, the plaintiff is to be deprived of his costs by means of a suggestion; under section 120, in certain events he loses his costs without the necessity of a suggestion. For these reasons, I think we are bound to allow the suggestion in this case."

Cresswell, Williams, and Talfourd, J. J., concurred.

SUGGESTED AMENDMENTS IN THE COUNTY COURTS BILL.

The 20th clause makes it necessary in certain cases for both parties to agree to county court to try action. As the clauses stand it would apply to all actions. It is suggested therefore that after the word "law" in line 23 of p. 5, to add

Bat at present exempted from the jurisdiction of county courts.*

The 23rd clause gives the judges of the superior

*The words and passages in italics are the suggested amendments, which we understand have been prepared by the Liverpool Law Society.

Suggested Amendments in the County Courts Bill.-Mercantile Law Amendment Bill.

courts power to direct causes to be tried in the county court where the sum claimed does not exceed £50. It is suggested that this should only be in actions involving questions of account, adopting the principle of the 3rd section of the Common Law Procedure Act, 1854, and that both parties should be heard before any order is made. After the word "May" in line 8, p. 6, add

Issue a rule or summons to shew cause, and on the hearing of such rule or summons if it shall appear that the matter in dispute consists wholly or in part of matters of mere account.

The 25th clause enacts that plaintiffs shall have judgment by default in the county court, in cases above £20, unless defendant gives notice of his intention to defend, but the judgment is not to be available until after the return of the summons. It is submitted that the notice of defence should be given in all cases of £10 and upwards, and that the judgment should be entered up, on the return day of the summons, as confusion would arise if this were not so. In line 21 of page 6, instead of the the word twenty read "Ten," and in lines 29 and 30 omit the words" or within one month after."

The 27th clause proposes to abolish costs on judgments by default in the superior courts in actions not exceeding £20. It is suggested that judgments by default should in all cases remain as at present. The expense is less, according to the scale now in force in the county courts, and will not be greater than the proposed scale. The remedy is quicker, as judgment and execution are obtained in 17 days, whereas in the county courts it takes a much longer time the average in large towns being a month. Suitors will always avail themselves of the cheapest and best remedies for recovering their debts and they may safely be left to select the tribunal for themselves, if county courts are preferable they will be resorted to; and it is respectfully submitted, that to force creditors into these courts, is inconsistent with the principle of giving facilities for the recovery of debts. There is another reason, the effect of this clause would be to deprive the inhabitants of Liverpool and other large towns, of the advantage of the summary proceedings on Bills of Exchange Act, which gives a plaintiff judgment after twelve days, whereas if he be driven to the county court, though such courts in Liverpool and some other places, sit de die in diem, a plaintiff could not get his cause heard under a month, and as there are thousands of bills of exchange and promissory notes made in large towns under £20, the effect of this clause would be to deprive suitors of the advantage of this admirable bill. This clause should therefore be struck out.

The 32nd and 33rd clauses forbid the recovery of any costs as between attorney and client, unless the latter signs a consent to pay them. This would be a great grievance to the profession, and in many cases work a positive injustice to the suitor. It would be humiliating and offensive to an attorney to ask his client to sign a written paper that he will pay, and the client would in many cases, deem it an insult; yet it would be unjust that the attorney should have no remedy for his proper charges. There are multitudes of cases under £20 on which both professional skill and labour are required, and it is submitted that the interests of both suitor and solicitor would be best served by the registrar of the court having the same power to deal with these charges as taxing officers have in other courts. suitor would be loser by the proposed change, for the respectable portion of the profession would refuse

The

177

to conduct cases in these courts; therefore it is suggested that the words "in writing" in line 24, of p. 8, and the words "by writing under the hand of the client," in the 37th and 38th lines of the same page

should be omitted.

It is

The 86th clause relates to the removal of causes from the county courts to the superior courts. very desirable that causes should not be removed by certiorari, without reasonable grounds being shewn; the plaintiff should therefore be heard against the application before the writ is allowed to issue. At present, causes are removed in the most arbitrary manner, and frequently at the last moment, eveu after plaintiff has gone to all the expense of preparing for trial. In many instances the plaintiff may not possess the means of following his adversary into a superior court, and the ends of justice are defeated by the removal. After the word "court" in line

28 of p. 9, add the words

Upon a rule or summons to shew cause.

The 66th clause provides for appeals. It is submitted that the right of appeal should not be limited to actions exceeding £20, but should be extended to all cases, if the judge at the trial should permit, and certify that the case is a proper one for an appeal. It must be obvious, that in great mercantile communities, very nice questions of law frequently arise upon cases of comparatively small amount, and the case is brought into court, not for the mere purpose of obtaining the amount sought, but to establish a principle. This has frequently arisen in the county court held at Liverpool, and the judge has expressed his regret that he had not the power to grant an appeal. Many of the county court judges who gave evidence before the commissioners appointed to enquire into the practice of county courts, also expressed that such was their opinion. It is suggested that at the end of clause 66, there should be added words to this effect

And in all actions, whatever be the amount of debt or damage claimed, if the judge shall certify that the same is a fit and proper case for an appeal, and upon such terms as he may direct.

MERCANTILE LAW AMENDMENT BILL.

PETITION OF MERCHANTS AND TRADERS OF THE CITY OF LONDON.

THIS petition urges the following objections to this bill:

1. That the petitioners have learnt that it has been proposed to repeal the 17th section of the 29th Chas. II., cap. 3, whereby it was enacted "that no contract for the sale of any goods, wares, and merchandises for the price of £10 sterling or upwards shall be allowed to be good, except that the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract or their agents thereunto lawfully authorised." And the 7th section of the 9th Geo. 4, cap. 14, whereby the hereinbefore recited enactments were extended to "all contracts for the sale of goods of the value of £10 and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may

178 Mercantile Law Amendment Bill.-Law of Attorneys and Solicitors.-Law of Costs. &c.

be requisite for the making or completing thereof, or rendering the same fit for delivery."

2. That the mercantile business of the City of London has grown up under, and has adapted itself to, the provisions of the act of Charles II.; and while the petitioners apprehend great risk and danger from a departure from this practice, they are unable to discover any advantage in the proposed alteration.

3. That the principle of the act of Charles II. was affirmed, and in some degree extended by an act passed in the year 1829 with general approbation, on the instance of the late Lord Tenterden, one of the most eminent commercial judges of modern times.

4. That the law imposes no unnecessary technicalities on contracts, they are required to be in writing, but may be in any form convenient to the parties, and are frequently effected by letters between the principals.

5. That in London a large part of the contracts are negotiated by brokers, and by the present practice all contracts entered into by a broker are sent to principals who are entitled to reject the same within twenty-four hours, if not in conformity with the intention of the parties.

6. That these provisions insure certainty, and give confidence in transactions in business, the importance of which can scarcely be appreciated.

7. That the petitioners conceive that, notwithstanding the proposed alteration of the law all contracts of importance will continue to be reduced to writing; but the petitioners will lose the protection the law now gives them.

8. That if the law shall be altered the petitioners may be called on at a lapse of many months to perform contracts of which they have no knowledge, arising out of misconception of those with whom they have been engaged in treaties, or of brokers or agents, to say nothing of the risk of fraud and collusion on the part of brokers and agents, the result of which must obviously be an increase of litigation and perjury.

9. That a large proportion of the contracts entered into contain stipulations as to the period of the arrival, of the shipment, or the delivery of goods, besides provisions as to their quality and price; and the value of the contract mainly depends on these details. That unless those stipulations are reduced to writing there can be no certainty that buyer and seller are agreed upon the contract they have entered into.

10. That the petitioners attach great value to the principle now acknowledged, that none but written contracts are valid in law. Those who choose to rely upon an honourable mutual understanding can now do so, but in practice it is rarely ever done, from a sense of its inconvenience. The measure now contemplated would not probably alter the practice of using written contracts, but would deprive the merchant of the security he now possesses in the knowledge that he is bound by no agreement which has not been accepted and revised by him, or which he has not had the opportunity of revising.

LAW OF ATTORNEYS AND
SOLICITORS.

PAYMENT OF FUND TO SOLICITOR ON UNDER-
TAKING.

THIS was a petition for the payment out of court of some small sums to the solicitor, upon his undertaking to pay the same over to the parties entitled.

The Master of the Rolls said-"In this case, the order may be taken for the payment of these small sums to the solicitor, he undertaking to pay them over to the parties entitled. The usual practice is, to require a document signed by the parties to be produced, expressing their wish that the amount should be paid to their solicitor. In this case, eleven out of twelve have signed such a paper, and the twelfth is resident in America. Under these circumstances, I will dispense with the signature in this particular case, on the undertaking of the solicitor to pay the same over."

Staines v. Giffard, 20 Beav. 484.

LAW OF COSTS.

OF CO-TRUSTEES, WHERE ONE PLAINTIFF AND THE OTHER DEFENDANT.

A SUIT was instituted by one of two trustees of a settlement to recover a fund settled on the husband, wife, and children in succession; but which had been received by the husband and lent to his brother. The defendants were the other trustee (Mr. Addison), the husband (Mr. James Kéy), and wife.

The Master of the Rolls said-"I cannot give Mr. Addison his costs, because, on his own allegation, he is an innocent trustee; and if so, it was clearly his duty to have joined the plaintiff in compelling the restoration of this money for the benefit of their cestuis que trust. I never allow an estate to be burdened with more than one set of costs, by the severance of two trustees, even if they appear as defendants, unless there is some very special reason for their so doing. If I gave him his costs, James Key would, in fact, have to pay them, because I should allow the plaintiff to add them to his own, and have them over against James Key. In my opinion, Mr. Addison ought to have joined as co-plaintiff, for the purpose of having the sum of money replaced by the husband, who, in fact, received it."

Hughes v. Key, 20 Beav. 395.

POINTS IN EQUITY PRACTICE.

REVIVOR AGAINST EXECUTOR OF EXECUTOR
PENDING DECREE FOR ACCOUNT.

PENDING the inquiry under a decree for an account directed against an executor, he died, having appointed an executor.

On motion under the 15 & 16 Vict. c. 86, s. 52, the Master of the Rolls made an order against such executor to revive and carry on the accounts, and that he should admit assets of his testator or account.

Cartwright v. Shepheard (No. 2), 20 Beav. 122.

ABATEMENT BETWEEN HEARING AND DELIVERY OF JUDGMENT.

A CAUSE became abated between the hearing and the delivery of judgment by the court.

The Master of the Rolls, upon the authority of Cumber v. Ware, 1 Stra. 426, held that judgment could be delivered and the decree could be notwithstanding drawn up.

Collinson v. Lister, 20 Beav. 355.

Points of Equity Practice,-Metropolitan and Provincial Law Association, &c. 179

SUPPLEMENTAL ORDER AGAINST INFANT CESTUI

QUE TRUST BORN PENDING SUIT.

A DECREE was made in a suit to carry into effect the trusts of a settlement, and declaring the rights and directing inquiries and accounts. After the decree had been passed and entered, but before anything was done under it, it was discovered that an infant cestui que trust had been born just before the hearing, and who had not been made a party to the suit.

The Master of the Rolls on motion made a supplemental order, under the 15 & 16 Vict. c. 86, s. 52, to carry on the decree, upon its appearing to be for the infant's benefit, to be bound by the decree. Jebb v. Tugwell, 20 Beav. 461.

METROPOLITAN AND PROVINCIAL LAW ASSOCIATION.

COUNTY COURT AMENDED BILL.

A PETITION has been presented by Mr. Hadfield, from this Association, for the alteration of some of the sections of the County Courts Bill, viz. :

S. 5. The petitioners desire, with reference to this section, that attorneys and solicitors may not be excluded by positive enactment from the possibility of being appointed to the office of deputy judges of the county courts. Many attorneys and solicitors are to be found who, by their education, legal acquirements, and habits of business, are fitted to act as deputy judges of county courts. The petitioners, therefore, take this opportunity of drawing the attention of the house to the fact, that the two solicitors who were appointed county court judges, are not inferior to any in ability and efficiency, and command the confidence and respect of the public in their respective districts.

25. The petitioners ask that this section, which will effect a great saving of expense, may be extended to all actions, as well those under as those over £20. A plaintiff employing a solicitor to conduct his case under the impression that the defendant will oppose, is often disallowed the costs of his

solicitor against the defendant, when the cause turns out to be undefended.

The petitioners also desire to draw the attention of the house to the great hardship and injury which is inflicted, both on the public and the profession of an attorney, by the enactment now in force which prevents an attorney pleading in the county courts, as the agent of another attorney. Cases daily occur in which, from a pressure of business, or from the mere fact of two county courts sitting on the same day, or of the court being at a great distance from his place of business, an attorney is unable to attend personally to advocate a cause for his client, and if he be compelled either to incur the unnecessary expense of employing a barrister, or to decline the particular business, and risk the loss of his client, a hardship is inflicted upon the client or the attorney, or both. The restriction is not only injurious, but creates a different practice from that in existence in the superior courts. Attorneys act for each other in the superior courts in person, and conduct cases as agents before the judges, the masters, and the chief clerks.

The petitioners trust, therefore, that this hardship on attorney and client may not be continued, and that the bill may be amended by introducing a clause, permitting one attorney to act as advocate in the county courts as agent for another.

33. The petitioners venture to remonstrate against the scale of costs provided for by the 91st section of the 9 & 10 Vict, c. 95, and to point out that no respectable practitioner can work for such remuneration, and that any clause such as this, which deprives an attorney of reasonable remuneration, unless he has previously made a written bargain with his client, is most objectionable.

The petitioners pray that these objections may be taken into consideration, and that it may be borne in mind that it is essential to the well-being of the system of county courts that the remuneration to the practitioners should be reasonably sufficient that honourable practitioners may not hesitate to practice in them. (Signed)

W. STRICKLAND COOKSON, Chairman.
WILLIAM SHAEN, Secretary.

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