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County Courts-The Commissioners' First Report.
THE COMMISSIONERS' RECOMMENDATION
HAVING given the substance of the Commissioners' recommendations regarding the alterations proposed in the jurisdiction of the County Courts, we proceed to state their views on the subject of the costs of professional assistance in conducting the business of the Courts.
The report states that proceedings in the County Court are, as a general rule, conducted by the parties in person. It is competent, however, for any party as a matter of right to appear by counsel and attorney, or by counsel only, or attorney only, such attorney not acting for another attorney in the conduct of the suit in Court. It is, however, a matter of discretion with the Judge whether the costs incurred in obtaining professional assistance shall be allowed as costs in the cause. It is competent for the Judge, if he sees fit upon the hearing, to permit any person other than the advocates already mentioned to appear for parties
in the cause.
With respect to employing an attorney or counsel antecedent or subsequent to the hearing, the costs of that employment cannot, even at the discretion of the Judge, be allowed as costs in the cause. To employ a barrister or an attorney in the conduct of a cause in the County Court is consequently exceptional. The costs abide the event, unless the Judge otherwise orders.
No scale of costs as between attorney and client, except in the particular instances after-mentioned, exists in the County Courts. Any claim, with those exceptions, which an attorney has against his client for services
rendered, must be taxed on the scale of some other Court.
As between party and party, costs of counsel or attorney previous to the hearing are not allowed in any case. Costs of counsel or attorney on the hearing can only be allowed by order of the Judge. Costs of witnesses and other expenses are also entirely in the discretion of the Judge, but in default of any special direction to the contrary, they ahide the event of the action. The costs allowed are divided into four classes: first, of counsel; second, of attorney; third, of witnesses; fourth, of other expenses.
against the opposite party, though it seems it may against the client ;-where the claim exceeds 51. but does not exceed 201., a fee of 11. 38. 6d. only can be allowed ;-where the claim exceeds 201. but does not exceed 501., a fee of 21. 4s. 6d. only can be allowed; where it exceeds 501., and in other cases under the consent clause, no scale
Fees to the Attorney vary with the amount of the claim sought to be recovered. Where the claim does not exceed 40s., the attorney cannot recover costs from any one; -where it exceeds 40s. but does not exceed
5, he can only recover from his own client 108., and nothing from the opposite party;when it does exceed 57. but does not exceed 207., his costs may be allowed to the amount of 158.;-where the demand in any plaint in covenant, debt, detinue, or assumpsit exceeds 207. but does not exceed 357., he may be allowed 17. 108., and where the demand exceeds 351. but does not exceed 501., he may be allowed 21.
A person other than an attorney, who is allowed by the Judge to appear for either party, is not allowed to recover any remuneration for his services.
In demands exceeding 50%., or other cases within the jurisdiction by consent, no scale of professional fees has been esta
The allowance for the attendance of witrules of Court, and which is subject to the nesses is fixed by a schedule attached to the discretion of the Judge, but the amounts there allowed are in no case.to be exceeded. The following is the scale contained in the schedule:
Gentlemen, merchants, bankers, and
5 0 0
Tradesmen, auctioneers, accountants,
Fees of Court paid by the successful party, in order to support his claim or defence, become costs in the cause.
Previously to the passing of the 15 & 16 Vict. c. 54, s. 1, much discussion had taken place in both Houses of Parliament on the subject of costs to be allowed to legal practitioners in the County Courts. It was ultimately provided by that Statute, that the Chancellor should be empowered to ap
In general, the amount of the claim de-point five County Court Judges to prepare termines the amount of the fee to Coun- scales of costs, both between party and sel; thus, when the claim does not exceed party, and between attorney and client. 5l., a fee to counsel cannot be allowed Those scales were to be submitted to three
Judges of the Superior Courts, of which a tain class of exceptional cases, the Legisla chief was to be one, and when sanctioned ture has already provided in the section by them, they were to regulate the costs cited, by awarding a certain limited amount to be taken in the County Courts. Five of costs to counsel and attorney, at the disCounty Court Judges were accordingly ap-cretion of the Judge.
pointed, and they, after several communi- They think that it would be inexpedient cations and conferences on the subject, with to increase the number of exceptions or several of the Law Societies and individual allow a greater amount of professional costs legal practitioners, prepared scales of costs than the Legislature already permits, or in conformity with what appeared to them to free the suitors, from the exercise of the be the intentions of the Legislature. When Judge's discretion, as to granting costs, in submitted to the learned Judges to whom those exceptional cases. They admit it these scales were referred, their lordships may be, that the fees awarded by the doubted whether the language of the Statute Statute are too small adequately to compenwas sufficiently explicit to enable them to sate legal practitioners in cases of real diffidispose of the subject in a satisfactory culty; but experience shows that the nummanner. No amending Act was passed, ber of the cases belonging to this class, and nothing further was done by the decided in the County Courts, is extremely learned Judges with reference to the scales. small, and they do not think it wise to enThe law, therefore, on this subject, remains danger an important principle of the trias above stated. bunal for the sake of a few exceptional cases.
It appears, therefore, that in the County Courts, according to the present law, no costs are recoverable as costs in the cause between party and party, except those which are specifically appointed in Statutes upon the subject; and that as between attorney and client, no provision, with one exception, is made with respect to costs.
The Commissioners then proceed to consider the question; first, with reference to costs as between party and party; and, secondly, with reference to costs as between attorney and client.
I. With reference to costs between party and party. That question may be treated, first, with respect to suits for sums not exceeding 201.; secondly, for sums exceeding 201. and not exceeding 501.; thirdly, claims under the consent clause 13 & 14 Vict. c. 61, s. 17.
First, with respect to suits for sums not exceeding 201.
Secondly, where the claim exceeds 201. but does not exceed 501.
In these cases the County Court ceases to be exclusively a "Small Debts Court." It is then a Court of jurisdiction concurrent with the Superior Courts.
The proceedings in the County Court being simple, local, and rapid, of course cannot require the establishment of a scale of costs to the same amount as that existing in the Superior Courts. But such a scale should be allowed as would, where professional assistance is requisite, reasonably compensate the legal practitioner.
They therefore think, that an amount of costs higher than that which is now sanctioned by law, but limited to such an amount as would secure a reasonable compensation to the practitioner for his services in the County Court, should be allowed at the discretion of the Judge.
Thirdly, with respect to claims within the consent jurisdiction under the 13 & 14 Vict. c. 61, s. 17.
In these claims they think the same principle as in cases within the concurrent jurisdiction ought to apply.
II. With regard to costs as between attorney and client.
One of the objects which the Legislature had in view (as the Commissioners state) in establishing the County Courts, was to secure for the poorer suitors a cheap tribunal, in which they might state their own case before the Judge, and obtain from him a prompt decision without the intervention of legal advisers. As a rule, in cases where the amount claimed is within the exclusive jurisdiction of the Court, no professional assistance is required. The exceptions to According to the construction which has this rule are few. To introduce the prac- been put upon section 91 of the 9 & 10 tice of allowing professional costs in all Vict. c. 95, it appears that an attorney who cases would be to alter a general rule for has conducted a proceeding in a County the sake of an exception. This appears to Court may recover from his client his costs the Commissioners impolitic. For a cer- for professional exertions out of Court on
First, as to cases where the claim does not exceed 201.
Alteration in Pleadings Bill.—Leases and Sales of Settled Estates Bill.
the same scale as in the Superior Court, the fees mentioned in the above section being intended as a compensation for the mere act of appearing in Court.
the said recited Act contained as to any rules, orders, and regulations which may be made by the said Judges under and by virtue of the said powers.
THIS Bill to facilitate leases and sales of
The Commissioners are of opinion that where the claim does not exceed 201., it LEASES AND SALES OF SETTLED would be desirable, in conformity with the principle of treating these Courts in such cases as the fitting tribunal for the recovery of small demands, without professional assistance, that no greater sum should be recoverable by the attorney from his client than the fees mentioned in the section, unless the client signs a memorandum to be attested by a witness other than the attorney, undertaking to pay costs on some scale, or for some amount, different from that provided by the Statute.
Secondly, with respect to costs of this description, where the claim exceeds 201., but does not exceed 507. :
There they think, on the principle already referred to, that an amount of costs, such as would reasonably compensate the practitioner, should be allowed.
Thirdly, with respect to claims within the consent clause.
In those claims, the Commissioners make the like recommendations as in the last class of cases.
ALTERATION IN PLEADINGS BILL.
THIS Bill, introduced by the AttorneyGeneral, proposes to continue the 13 & 14 Vict. c. 16, enabling the Judges of the Courts of Common Law at Westminster to alter the Forms of Pleading.
Powers were given by that Act to the Judges of the Superior Courts of Common Law at Westminster, within five years from the passing of the Act, to make such alterations in the mode of pleading in the said Courts, and in the mode of entering and transcribing pleadings, judgments, and other proceedings in actions at law, and in the time and manner of objecting to errors in pleadings and other proceedings, and in the mode of verifying pleas and obtaining final judgment, without trial in certain cases, and such regulations as to the payment of costs, and otherwise for carrying into effect the said alterations, as to them may seem expedient: the powers so by the Act conferred are about to expire, and it is desirable that the same should be further prolonged it is therefore proposed to enact, that the powers conferred by the said recited Act on the Judges of the said Superior Courts of Common Law at Westminster shall be continued for a period of five years from the passing of this Act, subject always to the provisions and conditions in
settled estates, recites that it is expedient the Court of Chancery should have power to authorise leases and sales of settled estates in all cases where it shall deem that such leases ministration of the estate, and consistent with or sales would be proper for the beneficial ada due regard for the interests of all parties entitled under the settlement; and that tenants for life of land in possession should have power to grant agricultural leases thereof, at rackrent, for a reasonable period, to be binding on
their successors. It is therefore proposed to
First, every such lease shall be made to take
Fifthly, every such lease shall be by deed, and the lessee shall execute a counterpart thereof; and every such lease shall contain a condition for re-entry on nonpayment of the rent within a period of not less than 28 days after it becomes due; s. 2.
When application is made to the Court, either to authorise a particular lease, or to vest any general powers of leasing in trustees, the Court shall require the applicant to produce such evidence as it shall deem sufficient to enable it to ascertain the nature, value, and circumstances of the estate, and the terms and conditions on which leases thereof ought to be authorised; s. 8.
Where the Court shall deem it expedient that any general powers of leasing any settled estates should be vested in trustees, it may by order vest any such power accordingly, either in the existing trustees of the settlement or any other persons; and such powers, when exercised by such trustees, shall take effect in all respects as if the power so vested in them had been originally contained in the settlement, and so as to operate (if necessary) by way of revocation and appointment of the use or otherwise as the Court shall direct; and in every such case the Court, if it shall think fit, may impose any conditions as to consents or otherwise on the exercise of such power, and the Court may also authorise the insertion of provisions for the appointment of new trustees from time to time for the purpose of exercising such powers of leasing as aforesaid; s. 10.
in any other trustees, upon such trusts for securing the continued appropriation thereof to the purposes aforesaid in all respects, and with such provisions for the appointment of new trustees when required, as by the Court shall be deemed advisable; s. 14.
Any person entitled to the possession or to the receipt of the rents and profits of any settled estates for an estate for life or any greater estate may apply to the Court of Chancery, by petition in a summary way, to exercise the powers conferred by this Act; s. 16.
Subject to the exception contained in the next section, every application to the Court must be made with the concurrence or consent of the following parties; namely, Where there is no tenant in tail under the settlement in existence, then the parties to concur or consent shall be all the persons in existence having any beneficial estate or interest under or by virtue of the settlement, and also all trustees having any estate or interest on behalf of any unborn children; And where there is a tenant in tail under the settlement in existence, then the parties to concur or consent shall be such tenant in tail and all persons in existence having any beneficial estate or interest under or by vir tue of the settlement prior to the estate of such tenant in tail, and all trustees having any estate or interest on behalf of any unborn children prior to the estate of such tenant in tail; s. 17.
Provided nevertheless, that it shall be law
It shall be lawful for the Court of Chancery, ful for the Court, if it shall think fit, to give subject to the provisions and restrictions in effect to any petition, subject to and so as not this Act contained, from time to time to autho- | to affect the rights, estate, or interest of any rise a sale of the whole or any parts of any person (not being a tenant in tail) whose consettled estates, or of any timber (not being sent or concurrence has been refused or canornamental timber) growing on any settled not be obtained, or whose rights, estate, or inestates, and every such sale shall be conducted terest ought in the opinion of the Court to be and confirmed in the same manner as by the excepted; s. 13. rules and practice of the Court for the time being is or shall be required in the sale of lands sold under a decree of the Court;
On any sale of land any earth, coal, stone, or mineral may be excepted, and any rights or privileges may be reserved, and the purchaser may be required to enter into any covenants, or submit to any restrictions which the Court may deem advisable; s. 13.
It shall be lawful for the Court of Chancery, subject to the provisions and restrictions in this Act contained, from time to time to direct that any part of any settled estates be laid out for streets, roads, or paths, drains or watercourses, either to be dedicated to the public or not; and the Court may direct that the parts so laid out shall remain vested in the trustees of the settlement, or be conveyed to and vested
The Court shall direct that some sufficient notice of any exercise of any of the powers conferred on it by this Act shall be placed on the settlement or on any copies thereof, or otherwise recorded in any way it may think proper, in all cases where it shall appear to the Court to be practicable and expedient, for preventing fraud or mistake; s. 21.
Nothing in this Act shall be construed to empower the Court of Chancery to authorise any lease, sale, or other act beyond the extent to which in the opinion of the Court the same might have been authorised in and by the settlement by the settlor or settlors; s. 24.
It shall be lawful for the Court, if it shall think fit, to order that all or any costs or expenses of all or any parties of and incident to any application under this Act shall be a charge on the hereditaments which are the subject of the application, or on any other hereditaments included in the same settlement; and the Court may also direct that such costs and expenses shall be raised by sale or mort gage of a sufficient part of such hereditaments, or out of the rents or profits thereof, such
Leases and Sales of Settled Estates Bill.—Administration of Oaths Abroad. costs and expenses to be taxed as the Court | freely desires to make or consent to such apshall direct; s. 26. plication; and such examination shall be made The Lord Chancellor, with the advice and whether the hereditaments which are the subassistance of the Master of the Rolls, the Lords ject of the application shall be settled in trust Justices of the Court of Appeal in Chancery, for the separate use of such married woman and the Vice-Chancellors, or of any three of independently of her husband, or not; and no them, may, if he shall think fit, from time to such application or consent shall be deemed time make general rules and orders for carry- a breach of any restraint on anticipation; s. ing the purposes of this Act into effect, and 33. for regulating the times and form and mode of procedure, and generally the practice of the Court in respect of the matters to which this Act relates, and for regulating the fees and allowances to all officers and solicitors of the Court in respect to such matters, and for altering the course of proceeding herein prescribed in respect to the matters to which this Act relates, or any of them; and such rules and orders may from time to time be rescinded or altered by the like authority; and all such rules and orders shall take effect as general orders of the Court; s. 27.
It shall be lawful for any person entitled to the possession or to the receipt of the rents and profits of any settled estates for an estate for life or for any greater estate, either in his own right or in right of his wife, and also for any person entitled to the possession or to the receipt of the rents and profits of any unsettled estates as tenant by the courtesy, or in dower, or in right of a wife who is seised in fee, to demise the same or any part thereof from time to time for any term not exceeding 14 years in possession, unless the settlement shall contain an express declaration that it shall not be lawful for such person to make such demise; provided that every such demise be made by deed, and the best rent that can reasonably be obtained be thereby reserved, without any fine or other benefit in the nature of a fine, which rent shall be incident to the immediate reversion; and provided that such demise be not made without impeachment of waste, and do contain a condition of re-entry on nonpayment within a time not less than 28 days of the rent thereby reserved, and on nonobservance of the covenants or conditions therein contained, and provided a counterpart of every deed of lease be made and executed by the lessee; s. 29.
All powers given by this Act, and all applications to the Court under this Act, and consents to such applications, may be exercised, made, or given by guardians on behalf of infants, and by Committees on behalf of lunatics, and by assignees of bankrupts or insolvents: Provided, nevertheless, that in the cases of infant or lunatic tenants in tail no application to the Court or consent to any application may be made or given by any guardian or Committee without the special direction of the Court; s. 32.
Where a married woman shall apply to the Court, or consent to an application to the Court, under this Act, she shall first be examined apart from her husband touching her knowledge of the nature and effect of the application, and it shall be ascertained that she
The examination of such married woman shall be made either by the Court or by some solicitor duly appointed to administer Oaths in Chancery, who shall certify, under his hand, that he has examined her apart from her husband, and is satisfied that she is aware of the nature and effect of the intended application, and that she freely desires to make or consent to the same; s, 34.
Subject to such examination as aforesaid, married women may make or consent to any applications, whether they be of full age or infants; s. 35.
Nothing in this Act shall be construed to create any obligation at law or in equity on any person to make or consent to any application to the Court, or to exercise any power; s. 36.
For the purposes of this Act a person shall be deemed to be entitled to the possession or to the receipt of the rents and profits of estates, although his estate may be charged or incumbered either by himself or by the settlor, or otherwise howsoever, to any extent; and any lease or sale authorized by this Act may be made either subject to any such charge or incumbrance, or freed therefrom with the concurrence of the party entitled thereto; s. 37.
Provided that nothing in this Act shall authorise any sale or lease beyond the term of 14 years of any settled estates in which, under the Act of the 34 & 35 Henry 8, c. 20, "to embar feigned recovery of lands wherein the King is in reversion," or under any other Act of Parliament, the tenants in tail are restrained from barring or defeating their estates tail; but the timber on any such last-mentioned estates may be sold under this Act; s. 38.
Nothing in this Act shall authorise the granting of a lease of any copyhold or customary hereditaments not warranted by the custom of the manor without the consent of the lord, nor otherwise prejudice or affect the rights of any lord of a manor; s. 39.
The provisions of this Act shall extend to all settlements, whether made before or after it shall come in force, except those as to demises to be made without application to the Court, which shall extend only to settlements made after this Act shall come in force; s. 40.
ADMINISTRATION OF OATHS
THE Foreign Minister has introduced a Bill to enable British Diplomatic and Consular Agents Abroad to administer Oaths and do Notarial Acts. By the 6 Geo. 4, c. 87, powers