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County Courts.-The Commissioners' First Report.
Vict. c. 95, no case can be removed from the County Court where the claim does not exceed 5., and then only by leave of a Judge of the Superior Court on such terms as he thinks fit. The Commissioners observe that
by that Court or Judge, subject in the latter case to the usual appeal to the Court, should be binding in the matter, and that no further application should be permitted to any other of the Superior Courts on the same grounds.
As a general rule, the amount of the They further recommend that in all cases claim is a convenient test of the import- where a certiorari has been obtained exparte ance of the question to be determined, and for the removal of a plaint from the County therefore it is generally desirable that where Court, and the party obtaining it has not a claim does not exceed 51. the cause should lodged the writ with the clerk of the County be irremovable. But it occasionally hap- Court two clear days at least before the day pens that questions of great difficulty, both of law and fact, arise in cases where the fixed for hearing the plaint, and if he has amount in dispute does not exceed 57. Thus, not given notice to the plaintiff of such cerquestions of fact occur where the claims belong tiorari having been obtained one clear day to a class, each of which, individually, is of at least before the day fixed for hearing the less amount than 57., but which, being ques-plaint, the Judge of the County Court tions of fact cannot, as the law now stands, be ought to be empowered, at his discretion, to raised before a superior tribunal. Thus, in order the party obtaining the certiorari to tor, or by several passengers on a railway, or pay all the costs of the day, or so much by several customers of a common carrier, thereof as he shall think fit, if the Court or where in each case the demand does not exceed Judge granting the certiorari has made no 51., although the question is of considerable order respecting such costs. importance, and in effect brings into litigation It is also recommended that a Court or an aggregate amount far beyond 57., no means Judge to whom an application is made for exist at present of removing such actions into a certiorari to remove a plaint from a the Superior Court. Again, different ques- County Court, ought to be empowered to grant a rule or summons to show cause why a certiorari should not issue, and that such rule or summons, if so directed, should be a stay of proceedings until the determination of such rule or summons.
actions by several workmen against a contrac
tions of law other than those which are ex
cluded from the jurisdiction of the Court may arise, or such questions may be so mixed with questions of fact as not to be conveniently separated, and yet the amount in dispute may not exceed 57.
Secondly, with respect to the writ of pro
They therefore recommend, that where a claim, whether in tort or contract, does not hibition.-The Commissioners recommend exceed 5., it shall be competent for the that restrictions similar to those in the case defendant to remove the plaint into one of of writs of certiorari, except as to deposit the Superior Courts by leave of the Judge of, or security for costs should, so far as of those Courts; but only on giving se- they are applicable, be imposed on writs of curity for the claim and costs in the Su- prohibition. They further recommend, perior Court, not exceeding 100., or on de- that where the writ of prohibition is directed positing that amount, and on such other to the Judge of the County Court, the determs as the Judge may think proper to cision of the Superior Court should be final, impose. and that no declaration or further proceedings in prohibition be allowed.
Thirdly, as to Appeals.
It is competent for a defendant to remove a plaint for a sum exceeding 51. and not exceeding 501. from the County Court by First, as to questions of law. In causes permission of a Judge of the Superior peculiarly within the jurisdiction of the Court, on such terms as he shall think fit; County Courts one important object sought and the Commissioners are of opinion, that to be attained is finality with which a right in such cases the law should remain un- to appeal would injuriously interfere. The altered, except that the Judge should fur- Commissioners think, therefore, that it ther be empowered to make the costs of the would be contrary to sound principle to proceedings in the County Court, which, allow an appeal either on questions of law under the present law, are lost to the party, or fact, when the matter in dispute does costs in the cause. not exceed 207. in amount. If any diffiThey recommend, also, that where an ap-cult question of law be likely to arise in a plication is made for a writ of certiorari to cause of that amount, the facilities for reone Court or to one Judge for the purpose moval already existing, or which have now of removing a plaint from the County Court, been recommended, would prevent a failure and the application is contested, the refusal of justice, and with respect to unexpected
difficulties arising at the trial they must be has been purchased at an average price of
877., and it is also understood the cash on accounts, which have not been dealt with for 15 years amounts to at least 500,000l.
exceptional, and should not interfere with the general principle of the jurisdiction. With respect to claims which exceed the amount of 201., but do not exceed 501., and The interest of both the above amounts cases within the consent clause of the ex- of stock is applicable to the payment of the tending Act, a right of appeal exists, and salaries and compensations of the officers of the Commissioners are of opinion that no the Court of Chancery. An analysis of change should be made in the law in that the last annual return of the Accountantrespect. They also think that the power General of the Court of Chancery to 1st of appeal should exist in all claims exceed November, 1854, shows that the compening 207. within the legal jurisdiction of the sations payable to the officers of the Court, Court, including that branch which has and the salaries of the Masters and their lately been conferred in matters of revenue. clerks, which, under the Masters' Abolition Secondly, as to appeals on questions of Act, will cease on their deaths, amount to fact. With respect to those questions, the 80,000l. per annum, and as these are now Commissioners are of opinion, that whether diminishing to the extent of at least 2,000l. under the exclusive, concurrent, or consent per annum, it follows that at the expiration jurisdiction, they ought not to be allowed. of 20 years 40,000l. per annum thereof In cases within the exclusive jurisdiction will cease to be payable. Assuming that they would be extremely mischievous, as 40,0007. is, in round numbers, the interest tending to promote litigation and increase of the above 1,291,6297. 58. 6d. stock, we expense. In cases within the two other branches of the jurisdiction, as the Judge only acquires power to decide the case by the consent of the parties, his determination is similar to the award of an arbitrator, and on questions of fact ought to be equally final.
The recommendations of the Commissioners as to Fees and Costs will next be
NEW COURTS OF LAW.
ING THE PROPOSED BUILDING.
THE return relating to the funds standing in the name of the Accountant-General of the Court of Chancery, obtained on the motion of Mr. Mullings, and which will be found in a preceding Number for March 3rd, affords some important accurate information with reference to that portion thereof known as the Suitors' Fund.
find, on reference to the schedule to the Succession Duty Act, that an annuity of 40,000l. per annum, diminishing annually 2,000l., is of the value of 320,6691. cash, or 352,7357. consols at 907. If, therefore, 352,7351. of the above 1,291,6297. 58. 6d. stock were authorised to be laid out in the purchase of an annuity of 40,000l. per annum, diminishing 2,000l. per annum, and terminating in 20 years, and a guarantee given by Parliament to supply any portion of this 1,291,6297. 58. d. stock that might be required to make good any demand of the suitors, it would leave 938,8941. 5s. 6d. stock, which might, without injury to the suitors, be applied in the purchase of the site and the erection of the new Courts of Justice, and it would be amply sufficient for that purpose, as will be seen on reference to the estimated expense thereof detailed in our Number for the 15th of May, 1852. As an equivalent to the suitors for such an application of a portion of their funds, the The amount of the suitors' cash lying Government should assume the payment of unemployed in the Bank on October 1st, the rest of the compensations, and the sala1853, was 3,239,2261. 188. 5d., whereof ries of the Masters and their clerks, 2,252,4647. Os. 7d. has been laid out in the whereby the suitors would be relieved for purchase of 2,590,9281. 188. 6d. stock, the next 20 years to the extent of 40,000l. and the surplus interest which has arisen per annum, and for the following 20 years therefrom, amounting to 1,032,0537. 78. 4d., to the extent of 40,0007, at the commencehas been laid out in the purchase of ment, but subsequently diminishing an1,291,6291. 58. 6d. stock. In case of the nually 2,0007., so that the fees now levied whole of the above amount of suitors' cash on the suitors might, on the Government being reclaimed, and the stock should prove the extent of 40,000l. per annum, or fourassuming that payment, be diminished to insufficient to realise the cash wherewith it was purchased, this latter amount of stock ninths of the present fees imposed on the is liable to make good the deficiency, an suitors of the Court of Chancery. event never likely to happen, as this stock
Remuneration of Solicitors—Petitions from the Liverpool and Leeds Law Societies. REMUNERATION OF SOLICITORS. equity practice was extensive enough to make
PETITIONS FROM THE LIVERPOOL AND LEEDS LAW SOCIETIES.
To the Right Honourable the Lord High Chancellor of Great Britain.
The Memorial of the Liverpool Law Society of practising Attorneys and Solicitors. SHEWETH,
That your Memorialists are largely engaged in suits in the High Court of Chancery, the necessities of commerce occasioning frequent resort to that Court.
That the inadequate remuneration of the country solicitor was the subject of complaint in the time of your lordship's great predecessor, the Earl of Eldon, and has so continued to the present time, with a great aggravation within the last three years by the changes introduced in the practice of the High Court of Chancery.
That your Memorialists greatly deplore that their emoluments should be made dependent upon the length and bulk of paper consumed in the proceedings in suits, and would hail as a great boon any plan which could be devised to make their compensation run pari passu with the interests of their clients, and submit with very great deference, that having reference to some standard scale of remuneration, large discretionary powers might be safely given to taxing officers to award remuneration according to the intricacy of a suit, and the time and attention and skill apparently bestowed upon it.
the allowances for formal or easy business balance the want of any allowance for difficult and important services, and was unjust to clients by making one pay in a high scale of allowance on formal documents for difficult but unremunerated services to another, as well as injurious to their interests, by making it the interest of solicitors to increase the number or length of the documents they had to prepare.
That the scale of equity costs, issued in Octoher, 1852, does not, however, by any means answer the requirements of the case, and must, as your memorialists conceive, have been framed under great misconceptions of the nature, extent, and difficulty of the services required from the solicitor under the new system; its general effect being to abolish, or greatly reduce, the length of documents upon which, under the former system, the solicitor's remuneration chiefly depended, without any, or with a very inadequate allowance, for those services which were performed gratuitously under the old system, and which, under the new one, are much more important, and require a much larger share of the solicitor's personal attention.
That the new scale will be ultimately as injurious to clients as it now is to solicitors, because its inadequacy to the capital, skill, and labour required must inevitably lead men of respectability who are possessed of the necessary capital, skill, and aptitude for labour to devote their attention to other modes of employment, and leave the business of solicitors in equity in the hands of less responsible and less trustworthy persons.
That your Memorialists would fain hope that your lordship's known liberality and consideration for all members of our common Profes- That the present scale, besides its inadequacy sion, would induce you to illustrate your as a whole, is to a considerable extent subject tenure of the Great Seal, by removing all just to the same defect which formed the chief obgrounds of complaint in reference to the re-jection to the former one, that of benefiting the muneration of solicitors, by the appointment of a Committee to investigate the whole subject, and by carrying the result of its labours into effect.
And your Memorialists will ever pray.
To the Right Honourable Robert Monsey Baron Cranworth, Lord High Chancellor of Great Britain.
The memorial of the practising Attorneys and Solicitors, residing at Leeds, constituting the Leeds Law Society. SHEWETH,
That in common with the general body of our Profession, we hailed the prospect of substituting a scale of equity costs which would proportion the solicitors' remuneration to the capital, skill, and labour actually employed for one which made it chiefly dependent on the length of the documents prepared.
practitioner who attends to his own interests in preference to his clients, and prejudicing one who attends to his clients' interests in preference to his own; first, because the amount of the allowances are not correctly proportioned to the comparative capital, skill, and labour business; and, secondly, because no adequate employed on each different head or class of remuneration is allowed for the labour requisite to perfect the solicitor's work at the commencement, and as the consequence the work requires correction or completion in subsequent stages for which it is found necessary to make allowances.
That your memorialists would by no means complain of their anomalous situation in being excluded from the common right of having the value of their services assessed by a jury, if the rules of taxation were properly adapted to the requirements of the case; they are, on the contrary, sensible that taxation by an officer of the That the old scale, by allowing unnecessary Court, if conducted on sound principles, and charges for formal or easy services, but ex-with proper discretion, is a better security to cluding other services of great difficulty and importance from all remuneration, was unjust to the Profession, except to the few whose
both solicitor and client, as well as more consistent with the due administration of justice than an appeal to a jury on a quantum meruit ;
day of next ensuing, and the same goods, chattels, and credits, and all other the goods, chattels, and credits of the said deceased at the time of his death which at any time after shall come to the hands or possession of the said A. B., or into the hands and possession of any other person or persons for him, do well and truly administer according to law, and further do make or cause to be made a true and just account of his administration at or before the day of
but they respectfully submit to your lordship and the same so made do exhibit or cause to that a thorough revision of the system of taxa- be exhibited into the registry of tion generally, and of the scale of the Act of Court at or before the 1852 in particular, is absolutely necessary in justice to both clients and solicitors; and, though it is desirable in framing a permanent system, that as little should be left to discretionary power as the nature of the case permits, your memorialists conceive that in the outset, and as an experimental measure, it would be advisable to give the taxing officers wide discretionary powers to consider the special circumstances attending the conduct of every business which comes under their notice, and to tax the costs with reference to such special circumstances, without being too strictly fettered by inflexible rules.
We, therefore, pray that your lordship will be pleased to make such inquiries into the subject of taxation of costs in equity generally (and especially into the operation and tendency of the scale of October, 1852), as your lordship may think expedient, and to cause such alterations to be made in the rules of taxation and the scale of allowance as will secure to solicitors practising in Courts of Equity a fair and just remuneration for their capital and skill, and the services required of them.
EDWIN EDDISON, Secretary.
Leeds, 27th April, 1855.
and all the rest and residue of the said goods, chattels, and credits which shall be found remaining upon the said administrator's account, the same being first examined and allowed of by the Judge or Judges for the time being of the said Court, shall deliver and pay unto such person or persons respectively as the said Judge or Judges by his or their decree or sentence, pursuant to the true intent and meaning of this Act, shall limit and appoint; and if it shall hereafter appear that any last will and testament was made by the said deceased, and the executor or executors therein named do exhibit the same into the said Court, making request to have it allowed and approved accordingly, if the said A. B. within bounden, being thereunto required, do render and deliver the said letters of administration (appro
PERSONAL ESTATES OF INTES-bation of such treatment being first had and
THE following Bill has just been introduced into the House of Commons by the Honourable P. J. Locke King, for the settling of Personal Estates of Intestates. It is proposed that
1. All ordinaries, as well the Judges of the Prerogative Courts of Canterbury and York for the time being as all other ordinaries and Ecclesiastical Judges, and every of them, having power to commit administration of the goods of persons dying intestate, shall and may, upon their respective granting and committing of administrations of the goods of persons dying intestate after the passing of this Act, of the respective person or persons to whom any administration is to be committed take suflicient bonds, with two or more able sureties, respect being had to the value of the estate, in the name of the ordinary, with the condition in form and manner following mutatis mutandis; viz.
"The condition of this obligation is such, that if the within bounden A. B., administrator of all and singular the goods, chattels, and credits of C. D. deceased, do make or cause to be made a true and perfect inventory of all and singular the goods, chattels, and credits of the said deceased which have or shall come to the hands, possession, or knowledge of him the said A. B., or into the hands and possession of any other person or persons for him,
made) in the said Court, then this obligation to be void and of none effect, or else to remain in full force and virtue :"
Which bonds are hereby declared and enacted to be good to all intents and purposes, and pleadable in any Court of justice.
2. The said ordinaries and Judges respectively shall and may and are enabled to proceed and call such administrators to account for and touching the goods of any person dying intestate, and upon hearing and due consideration thereof to order and make just and equal distribution of what remaineth clear (after all debts, funerals, and just expenses of every sort first allowed and deducted), amongst the wife and children, or children's children, if any such be, or otherwise to the next of kindred to the dead person in equal degree, or legally representing their stocks pro suo cuique jure, according to the laws in such cases, and the rules and limitation hereafter set down, and the same distributions to decree and settle, and to compel such administrators to observe and pay the same by the due course of her Majesty's Ecclesiastical laws; saving to every one supposing him or themselves aggrieved their right of appeal as was always in such cases used.
3. All ordinaries, and every other person who by this Act is enabled to make distribution of the surplusage of the estate of any person dying intestate, shall distribute the whole surplusage of such estate or estates in manner and form following; that is to say, one-third part of the said surplusage to the
Personal Estates of Intestates.-Testamentary Jurisdiction Bill.
wife of the intestate, and all the residue by equal portions to and amongst the children of such persons dying intestate, and such persons as legally represent such children, in case any of the said children be then dead, other than such child or children who shall have any estate by descent from the intestate father or mother or by the settlement of such intestate, or shall be advanced by such intestate in his lifetime by portion or portions equal to the share which shall by such distribution be allotted to the other children to whom such distribution is to be made; and in case any child shall have any estate by descent or by settlement from the said intestate, or shall be advanced by the said intestate in his lifetime by portion not equal to the share which will be due to the other children by such distribution as aforesaid, then so much of the surplusage of the estate of such intestate to be distributed to such child or children as shall have any land by descent or settlement from the intestate, or where advanced in the lifetime of the intestate, as shall make the estate of all the said children to be equal as near as can be estimated.
4. In case there be no children, nor any legal representatives of them, then one moiety of the said estate to be allotted to the wife of the intestate, the residue of the said estate to be distributed equally to every of the next of kindred of the intestate who are in equal degree, and those who legally represent them.
5. That there be no representations admitted among collaterals after brothers and sisters children.
6. In case there be no wife, then all the said estate to be distributed equally to and amongst the children; and in case there be no child, then to the next of kindred in equal degree of or unto the intestate, and their legal representatives as aforesaid, and in no other manner whatsoever.
7. In case any married woman dies intestate, her husband may demand and have administration of his rights, credits, and other personal estates, and recover and enjoy the same, as he might have done before the passing of this Act.
and charges of the administrator by reason of such debt, out of the part and share so as aforesaid allotted to him or her, thereby to enable the said administrator to pay and satisfy the said debt or debts so discovered after the distribution made as aforesaid.
10. Provided always, that in all cases where the ordinary hath used heretofore to grant administration cum testamento annexo he shall continue so to do, and the will of the deceased in such testament expressed shall be performed and observed in such manner as it should have been if this Act had never been made.
11. The following Acts and parts of Acts are hereby repealed as to estates to be administered and distributed under this Act; that is to say
The 22 & 23 of Car. 2, c. 10; the 25th sect. of the 29th Car. 2, c. 3; the 5th sect. of 1st Jac. 2, c. 17, so far as it makes the provisions hereby repealed perpetual; and the 6th, 7th, and 8th sects. of the said Act of the 1st of Jac. 2, c. 17.
12. This Act shall not extend to Scotland.
[Concluded from p. 496, ante.]
Rules and Regulations.
It shall be lawful for the Lord Chancellor, at any time after the passing of this Act, and from time to time, to make such rules, orders, and regulations respecting the form and mode of proceeding in the Court, and the practice thereof, and the conduct and duties of the officers and practitioners therein, and, if he shall so think fit, for altering the course of proceeding herein prescribed or referred to in reference to any of the matters to which this Act relates, and also for regulating the fees and allowances to solicitors of the Court in relation to such matters, as to him shall seem fit, and from time to time to repeal or alter such rules, orders, and regulations; and all such rules, orders and regulations shall have the same force and effect as if the same bad been enacted by Parliament: Provided always, that a copy of such rules, orders, and regulations shall immediately after the issuing of the same, be laid before both Houses of Parliament, if Parliament be then assembled, and if Parliament be 9. To the end that a due regard be had to not then assembled, then within five days after creditors, no such distribution of the goods of the meeting thereof: Provided also, that if any person dying intestate shall be made till either House of Parliament shall, by any resoafter one year be fully expired after the intes-lution to be passed within 36 days after the tate's death; and such, and every one to whom any distribution and share shall be allotted, shall give bond, with sufficient sureties, in the said Courts, that if any debt or debts truly owing by the intestate shall be afterwards sued for and recovered, or otherwise duly made to appear, that then and in every such case he or she shall respectively refund and pay back to the administrator his or her rateable part of that debt or debts, and of the costs of suit,
8. After the death of the father, if any of his children die intestate, without wife or children, in the lifetime of the mother, every brother and sister, and the representatives of them, shall have an equal share with him.
same shall have been laid before such House, resolve or declare that such rules, orders, or regulations, or any of them, ought not to remain in force, then and in such case the same rules, orders, and regulations, or such of them as shall be so objected to, shall from and after such resolution be abrogated and cease to be binding; s. 83.
The acting Judge and registrar of every Court, or person, or body politic or corporate,