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Correspondence.-Notes of the Week.-Superior Courts: Lord Chancellor.
SELECTIONS FROM CORRE-
REMUNERATION TO SOLICITORS.
last number of the Legal Observer, as to the clause introduced into the Bill for the "Despatch of Business in Chancery," and think with you, that the proposed enactment will imUnquestionably the remuneration to the pede business in many instances. It has been Profession needs much consideration and a a great boon to the public and the Profession, I am not aware why the Scotch the empowering London Commissioners to adsystem, being a compensation according to the minister oaths, saving time and trouble. It value of the subject, might not to a certain must be the merest red tapeism to desire an extent be adopted, provided too much was not alteration, and the clause must owe its suggiven, which might be the case in matters of gestion to such a course. very large amount. There will, however, be no difficulty in fixing a limit so as to make the remuneration a moderate one.
I was about to write to you to enlarge upon the usefulness of the power given to London Commissioners, and to suggest that the Judges of the Common Law Courts should grant similar Commissions for taking affidavits in their Courts. This would also afford great convenience to the public and the Profession, although a few shillings may be lost to the official purse.
It is clear the Profession is not remunerated as well as auctioneers. In one case of a sale of an estate within 25 miles of London, the auctioneer charged some 700l., while the solicitor's profits were not a tithe of that sum, with perhaps ten times the trouble. On another occasion I remember, some years ago, trying a case on behalf of the defendant, at the Surrey Assizes, and although the defendant had a verdict, the taxed costs did not cover THESE Bills have been reported by the Sethe actual disbursements in the cause. Surely, lect Committee - Mr. Keating's Bill with there is something "rotten in the state of Amendments, and we infer the Committee are Denmark" here. in favour of that Bill.
A SOLICITOR OF NEARLY 50 YEARS'
7th May, 1855.
NOTES OF THE WEEK.
BILLS OF EXCHANGE BILLS.
BANKERS' CHEQUES BILL.
This Bill for burthening the cheques on London Bankers with a penny stamp, has been withdrawn by the Chancellor of the Exchequer.
RECENT DECISIONS IN THE SUPERIOR COURTS.
Lash v. Miller. May 1, 1855.
became bankrupt before answer. An application was made on 25th April last to ViceChancellor Wood for an order under the 15 &
EQUITY JURISDICTION IMPROVEMENT ACT. 16 Vict. c. 86, s. 52,' that the proceedings
-BANKRUPTCY BEFORE ANSWER. -AS
A bill was filed against two persons, who both appeared, and one answered, but the other became bankrupt before answer. An order was made under the 15 & 16 Vict. c. 86, s. 52, that the proceedings should be in the same plight as against the assignees, with liberty to them to answer. In this case the bill was filed against Miller and Gray. Both appeared, and both were required to answer. Gray answered and Miller
Which enacts, that " Upon any suit in the said Court becoming abated by death, marriage, or otherwise, or defective by reason of some change or transmission of interest or liability, it shall not be necessary to exhibit any bill of revivor or supplemental bill in order to
obtain the usual order to revive such suit, or the usual or necessary decree or order to carry on the proceedings; but an order to the effect of the usual order to revive or of the usual supplemental decree may be obtained as of course upon an allegation of the abatement of such suit, or of the same having become defective, and of the change or transmission of interest or liability; and an order so obtained, when served upon the party or parties who according to, the present practice of the said Court wou'd be defendant or defendants to the bill of re vivor or supplemental bill, shall from the time of such service be binding on such party or parties in the same manner in every respect as if such order had been regularly obtained according to the existing practice of the. aid Court; and such party or parties shall
might, as against the assignees, be in the same Freeling, in support, referred to the Order plight as they were, as against the defendant of 10th December, 1849, which directs, that Miller, at the time of the bankruptcy. His "in all cases in which costs are ordered to Honour refused the application on the ground be paid to a party suing in formá pauperis, that it was not a case of pure revivor, and that such costs shall, unless the Court shall otheras there had not been a decree a supplemental wise order, be taxed as dives costs." decree could not be made. A similar applica- The Vice-Chancellor granted the application. tion was then made to the Lords Justices, who suggested that the matter should be mentioned to the Lord Chancellor.
Ellis now accordingly applied, and contended that the reason why revivor was allowed in case of death as against the personal representative or heir at law was, because the title of such representative or heir at law could not be disputed, at least in the Court of Chancery, and that under the Bankruptcy Consolidation Act, sect. 226, the appointment of assignees certified by the seal of the Court was indisputable evidence of such appointment, and that therefore an order analogous to the order to revive ought to be made in the present case.
The Lord Chancellor made an order that the cause and proceedings should be in the same plight and condition as against the assignees as they were in as against the bankrupt at the time of his bankruptcy, with liberty to the assignees to answer the bill.
PAUPER PLAINTIFF. COSTS OF ABAN-
Held, that a plaintiff suing in formâ pau-
THIS was an application on behalf of the plaintiff in this cause suing in formá pauperis for an order for dives costs of an abandoned motion.
Court of Queen's Bench.
LAW PROCEDURE ACT.
THIS was a rule nisi that the memorandum of error in this quo warranto should be received at the Crown Office, under the 15 & 16 Vict. c, 76, s. 149, which enacts, that "either parties alleging error in law, may deliver to one of the Masters of the Court a memorandum in writ ing, in the form contained in the schedule (A.) to this Act annexed, marked No. 10, or to the like effect, entitled in the Court or cause, and signed by the party or his attorney, alleging that there is error in law in the record and proceedings; whereupon the Master shall file such memorandum, and deliver to the party lodging the same a note of the receipt thereof, and a copy of such note, together with a statement of the grounds of error intended to be argued, may be served on the opposite party or his attorney."
By s. 146, it is enacted, that "no judgment in any cause shall be reversed or avoided for any error or defect therein, unless error be commenced, or brought and prosecuted with effect, within six years after such judgment signed or entered of record."
Norman showed cause against the rule, which was supported by Maynard.
would therefore be discharged.
Court of Eusolvewcy.
In re James Shaw. May 2, 1855.
SECOND PETITION AFTER FINAL ORDER.
Held, that an insolvent who has petitioned
The Court said, that however desirable it thenceforth become a party or parties to the suit, might be that error should apply to proceedand shall be bound to enter an appearance there-ings by quo warranto, the Act only applied to to in the office of the Clerks of Records and Writs, within such time and in like manner as if he or they had been duly served with process to appear to a bill of revivor or order of the Lord Chancellor, provided that it shall be open to the party or parties so served, within such time after service as shall be in that behalf prescribed by any general order of the Lord Chancellor, to apply to the Court by motion or petition to discharge such order on any ground which would have been open to him on a bill of revivor or supplemental bill, stating the previous proceedings in the suit and the alleged change or transmission of interest or liability, and praying the usual relief consequent thereon: Provided also, that if any party so served shall be under any Mr. Commissioner Murphy said, that the disability other than coverture, suc order shall Chief Commissioner and Mr. Commissioner be of no force or effect as against such party Phillips were of opinion, that second petitions until a guardian or guardians ad litem shall could not be entertained under the Protection have been duly appointed for such par ty, and Act; and although he did not concur in that such time shall have elapsed thereafter as be prescribed by any general order of the ord act in accordance with their views, until the opinion, he should yield to the majority and Chancellor in that behalf."
under the Protection Act and received a final order, cannot present a second petition. insolvent, who had petitioned under the ProTHE question in this case was, whether an tection Act and received a final order, could at any time file a second petition.
point was decided by a Superior Court.
The Legal Observer,
"Still attorneyed at your service."-Shakespeare.
SATURDAY, MAY 26, 1855.
BILLS OF EXCHANGE AND PRO-
REPORT OF THE SELECT COMMITTEE OF
and Durham. The Committee adopted the title of the other Bill, and the present is to be called "The Summary Procedure on Bills of Exchange Act, 1855."
It was proposed in the Committee, that "Every protest of a Notary Public of a Bill THE Report of the Select Committee on of Exchange or Promissory Note shall be the Bills of Exchange Bills has just been received in all proceedings under the Act published with the evidence, and accom- as evidence of the facts therein set forth, panied with the amended Bill. The Select in like manner as the protest of Foreign Committee were Sir Erskine Perry, Mr. Walpole, Mr. Kirk, Mr. Glyn, the SolicitorGeneral for Ireland, Mr. Keating, Mr. Lowe, Mr. Muntz, Mr. Horsfall, the Lord Advocate for Scotland, the Attorney-General, Mr. Gurney, Mr. Henley, Mr. Atherton, and Mr. Hankey.
It will be observed that several bankers and others were on the Committee, as well as lawyers. The Committee held six meetings and examined four witnesses, namely, Mr. Gilmour, formerly a Scotch solicitor, now at the English Bar; the Lord Advocate of Scotland; Mr. Park Nelson, the Solicitor of the Notaries of London; and Mr. Walton, one of the Masters of the Court of Exchequer.
Bills of Exchange is now received as evidence of such facts." But this proposition was negatived by 5 to 3.
The Committee then agreed to the following Report, dated the 15th May, and which has been presented to the House :
"The Select Committee to whom the Bills of Exchange Bill [Lords], and the Bills of Exchange and Promissory Notes Bill were referred, and who were empowered to send for Persons, Papers, and Records, and to report their observations, and the minutes of evidence taken before them, to the House; have considered the matter to them referred, and agreed to the following Report:
"Your Committee proceeded to consider the two Bills committed to them.
After hearing these witnesses, the Committee determined to proceed with the Bills of Exchange and Promissory Notes Bill, which had been brought in by Mr. Keating "As it appeared to your Committee that and Mr. Mullings, and made several amend- each Bill was founded on the principle of prements therein, and added clauses authoris- venting fictitious defences on Bills and Notes, ing a Judge under special circumstances to and of giving greater facilities to parties seekset aside a judgment on such terms as may ing the assistance of a Court of Justice, your be deemed just; and to impound a bill or
note where fraud is suggested. The Com. Committee determined to hear evidence as to mon Law Procedure Acts of 1852 and the cost of proceedings under the Scotch sys1854, and the Rules of Court thereon, are tem, as proposed in the Bills of Exchange to be made applicable to proceedings under Bill and under the English system, adopted this Act, and the Act is to be extended to in the Bills of Exchange and Promissory Notes the County Palatine Courts of Lancaster Bill.
VOL. L. No. 1,420.
"Your Committee were of opinion, that it was unadvisable to introduce a new system of procedure, if the forms of the English Law could be made available for the object in view and, on hearing the evidence, it appeared to your Committee that summary procedure might be easily introduced into English Law, and that the costs under the Scotch system would not, on the whole, be less than those which would be incurred under English practice.
"Your Committee, therefore, determined to proceed with the Bills of Exchange and Promissory Notes Bill, and have carefully considered its provisions."
The amended Bill is as follows:AMENDED BILLS OF EXCHANGE AND PROMISSORY NOTES BILL.
THIS Bill, to facilitate the Remedies on Bills of Exchange and Promissory Notes by the Prevention of frivolous or fictitious Defences to Actions thereon, has been amended in the Select Committee of the House of Commons, by adding four clauses, marked from A to D. The Bill recites, that bona fide holders of dishonoured bills of exchange and promissory notes are often delayed and put to unnecessary expense in recovering the amount thereof by reason of frivolous or fictitious defences to actions thereon, and it is expedient that greater facilities than now exist should be given for the recovery of money due on such bills, and
The proposed enactments are,
the Lords Chief Justices and the Lord Chief Baron shall be three), unless the plaintiff claim more than such fixed sum, in which case the costs shall be taxed in the ordinary way, and the plaintiff may upon such judgment issue execution forthwith.
2. A Judge of any of the said Courts shall, upon application within the period of twelve days from such service, give leave to appear to such writ, and to defend the action, on the defendant paying into Court the sum indorsed on the writ, or on affidavits satisfactory to the Judge, which disclose a legal or equitable defence, or such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Judge may deem sufficient to support the application, and on such terms as to security or otherwise as to the Judge may seem fit.
3. Clause A.-After judgment, the Court or a Judge may, under special circumstances, set aside the judgment, and, if necessary, stay or set aside execution, and may give leave to appear to the writ, and to defend the action, if it shall appear to be reasonable to the Court or Judge so to do, and on such terms as to the Court or Judge may seem just.
4. Clause B.—In any proceedings under this Act it shall be competent to the Court or Judge to order the bill or note sought to be proceeded upon to be forthwith deposited with an officer of the Court, and further to order that all proceedings shall be stayed until the plaintiff shall have given security for the costs
Procedure Act, 1852, and the Common Law 5. The provisions of the Common Law Procedure Act, 1854, and all rules made under or by virtue of either of the said Acts, shall, so far as the same are or may be made applicable, extend and apply to all proceedings to be had or taken under this Act.
6. Clause C.-The provisions of this Act shall apply, as near as may be, to the Court of Pleas at Durham, and the Judges of such Courts, being Judges of one of the Superior Courts of Common Law at Westminster, shall have power to frame all rules and process nethereto.
Common Pleas at Lancaster and the Court of
7. Nothing in this Act shall extend to Ireland or Scotland.
1. All actions upon bills of exchange or promissory notes commenced within six months after the same shall have become due and payable, may be by writ of summons in the special form contained in schedule A. to this Act annexed, and indorsed as therein mentioned; and it shall be lawful for the plaintiff, on filing an affidavit of personal service of such writ within the jurisdiction of the Court, or an order for leave to proceed, as provided by the Com-cessary mon Law Procedure Act, 1852, and a copy of the writ of summons and the indorsements thereon, in case the defendant shall not have obtained leave to appear and have appeared to such writ according to the exigency thereof, at once to sign final judgment in the form contained in schedule B. to this Act annexed (on which judgment no proceeding in error shall lie) for any sum not exceeding the sum inIt will be observed that the proposed six dorsed on the writ, together with interest, at the rate specified (if any), to the date of the days "diligence" in Lord Brougham's Bill judgment, and a sum for costs to be fixed by has been extended to twelve in the amended the Masters of the Superior Courts or any Bill. three of them, subject to the approval of the Judges thereof or any eight of them (of whom
8. Clause D.- citing this Act in any instrument, docur it, or proceeding, it shall be sufficient to user expression "The Summary Procedure on Bilis f Exchange Act, 1855."
Report of the Commissioners on County ourts:-Fees.
REPORT OF THE COMMISSIONERS by the Chancellor, in pursuance of the 12 ON COUNTY COURTS.
& 13 Vict. c. 101, s. 12, were requested to consider the matter, and to frame a scale of fees in conformity with their views, on the principle that, having regard to the average amount of the business in the Courts, the fees, including the general fund fee, should I. They have, in the first place, consi-produce a sufficient revenue to support the dered whether the fees can be levied in a manner less burthensome to the suitors; and the following is the result of their investigation:
WE proceed now to state the substance of the Commissioners' Report on the Fees of the County Courts.
whole of the establishment and its incidents, with the exception of the salaries of the treasurers, which were by section 23 of 9 & 10 Vict. c. 95, expressly charged upon the consolidated fund.
By the 9 & 10 Vict. c. 95, s. 37, it was provided, that certain fees mentioned in As to the first objection, the Committee Schedule D. to that Act should be taken proposed that the suitors should be relieved for the benefit of the Judges, clerks, and to the extent of one-seventh of the total high bailiffs, irrespective of the general amount of the revenue produced by the fund fee, which was established by section fees. It was suggested that by analogy to 52 of the same Act, and is applicable to other taxes, a diminution in the amount of different purposes. By section 37, a power the fees would produce a corresponding inwas reserved to one of her Majesty's prin- crease of business, and consequent increase cipal Secretaries of State, with the consent of revenue, and therefore that no permanent of the Commissioners of her Majesty's Treasury, to alter but not to increase the fees mentioned in the schedule to the Act. A similar power was contained in s. 52, with respect to the general fund fee. More extensive powers of altering the fees were afterwards conferred on the same authorities by the 12 & 13 Vic. c. 101, s. 6.
Soon after the establishment of the Courts, many complaints were made by the suitors, both of the scale mentioned in the schedule and of the contribution to the general fund. The principal objections to the then existing scale were:
First, that the amount of fees, including the first and second classes, was ex
Secondly, that the language of the schedule was so vague that the officers were enabled to take more fees than the Legislature intended: Thirdly, that as the amounts in respect of which the fees were to be taken, rose only by four steps, from 11. to 201.; the suitor who claimed 27. 1s. was compelled to pay as much as he who claimed 57., and the suitor who claimed 107. 18. compelled to pay as much as he who claimed 201. In the year 1850, a Secretary of State and the Lords Commissioners of the Trea-| sury, in consequence of these complaints, determined to exercise the powers with which they were invested under the 12 & 13 Vict. c. 101, s. 6, and the 9 & 10 Vict. c. 95, s. 52, to alter the amount of fees taken in the County Courts, and the Committee of County Court Judges appointed
loss would result from the proposed reduction. The Government consented to undertake the risk of the non-productiveness of the Court, and accordingly the Committee were requested to frame a scale on the principle of such a reduction. The scale now in force was accordingly made, and came into full operation at the beginning of the year 1851.
The anticipations of the Committee were fulfilled. The revenue of 1850 was 252,000l. Assuming that the same amount of business continued in the Courts, the revenue of 1851, after the diminution of one-seventh, or 36,000l., would have fallen to 216,0007. By the returns of the year 1851, however, it appears that the total revenue of that year was 272,000l. This increased productiveness cannot be attributed entirely to the principle suggested by the Committee, as the sum of 36,000l. appears by the returns to have been produced by business resulting from the extended jurisdiction over claims not exceeding 507., which in the year 1851 came into force. Still, however, the remaining sum of 20,0001. beyond the anticipated 216,000l. was fairly attributable to the above-mentioned principle, and in the following year the revenue continued to increase.
In the formation of the scale, the Committee abolished some fees, and reduced the amount of others, and with regard to the general fund, the fee of 18. in the pound on claims exceeding 40s. was reduced to 8d. The exemption of sums not 208., and the fee of 6d. in the pound on sums not exceeding 40s., were left as by law provided.