« ElőzőTovább »
The second objection, founded on the brought to his own home. This is an object, however, which, though desirable, it is impossible completely to attain, but a greater approximation to its attainment may be made than is effected by the present scale of fees.
vague language of Schedule D., was removed by employing the language in which the present scale is expressed.
The third objection, as to the sudden rises in the scale, with reference to the amounts of claims, was met by substituting a scale, in which the amounts of the suitors' respective claims were treated as the basis for calculating the fee according to an arithmetical progression, increasing by 17. from the sum of 11. to 207. inclusive.
It will be observed that in the above scale, the progression stops at 201. If it continued beyond 201. to claims as high as 501., the fees would have been so great as probably to exclude that class of business from the Court, and so far prevent the revenue from recovering from the loss which the diminution of fees had caused.
The Commissioners recommend, that in all cases of service or execution of process at a distance from the Court, the same fee should be paid, whatever that distance may be. This fee should be of such an amount as that, having regard to the average number of services and executions, a total equal to that at present raised should be secured. The high bailiff would then keep an account, in conformity with the mode of calculating distances now existing in the Court, of the miles travelled, and at the audit, the treasurer should pay over to him a proportionate sum. No danger of fraud upon the The principles of the above scale, inde- treasurer would exist, because the books of pendent of the reduction of amounts, ap- the Court disclosing the place of the depear to be, that as the suitors were to be fendant's residence, and the distance book compelled to support the Court by paying of the Court showing the number of miles for the use of it, they should pay in pro- to that residence, would afford a complete portion to that use, and as the Court was check. By this means, the burthen would peculiarly the poor man's Court, the poorer suitors should pay less than the richer ones.
The answers to the inquiries made by the Commissioners on this subject satisfy them that if the Courts are to be rendered self-supporting, this scale is in principle correct, although certain fees, which are hereafter referred to, have been shown by more extended experience to be unnecessarily burthensome to the suitor.
The Commissioners then proceed to point out, how the scale in force, supposing the present amount of revenue to be required from the Courts, may be rendered less burthensome to the suitors.
be equally divided among all the suitors of the Court, the bailiff would be compensated for his extra labour, and the principle of local administration of justice more completely enforced.
From the calculations made, it appears that, in lieu of the mileage fee, an additional penny in the pound on the sum claimed would produce the required amount. This will be little more than a nominal increase of fee to suitors, where the defendant resides near the Court, but will be a most important relief of the burthen now imposed in other cases.
Another fee to be found in the existing scale is that for conveying a defaulting party to prison, where he has been committed under the penal clauses of the 9 & 10 Vict. c. 95. The remarks made with reference to the mileage fee, in the case of process, are equally applicable to this fee.
One of the most burthensome fees which a suitor is called upon to pay, is the mileage fee to the bailiff in respect of serving and executing the process of the Court. As this fee is paid to the bailiff in respect of his greater labour in travelling to perform The Commissioners propose, on the same his duty, it is equally applicable to the principle, that one fee should be substilowest and the highest amount of claim. tuted for the mileage fee in such cases, Such a fee, so far as the bailiff is concerned, however distant the gaol may be from the is just; but so far as the suitor is affected, Court. is unjust. It compels a plaintiff to pay The calculations which have been made more or less for the service of his process lead to the conclusion, that a fee of 18. in according to the accidental circumstance of the pound on the sum for which the warrant the distance which his debtor resides from issues would produce the required amount. the Court. The principle of local jurisdic- This alteration would have an effect similar tion is, that in each district, so far as pos- to that produced by the proposed change in sible, every suitor should have his remedy the service fee.
Report of the Commissioners on County Courts:-Fees.
It will be seen that in hereafter consider- They recommend, therefore, that the fee ing how far the amount produced by the in replevin should be payable in proportion present fees should be reduced, it is pro- to the value of the goods distrained, such posed to abolish all mileage fees, and to value to be ascertained and determined, if remunerate the bailiff, in respect of the necessary, by the clerk. This and the lastdistance travelled by him in the perform- mentioned fee, they propose should be subance of his duties, out of the produce of ject to the restriction mentioned in the the fees proposed to be retained. scale with reference to 201.
The fee for keeping possession of goods taken in execution until the time of sale, also requires modification. It will be observed, that the poundage is, by the present scale, calculated on the amount for which the execution issues.
The Commissioners think that the fee for possession ought to be calculated only on the value of the goods actually seized, but not exceeding the amount mentioned in the warrant, such value to be ascertained and determined, if necessary, by the clerk. This is more consistent with the nature of a fee for possession having relation to value. In many instances, that which is taken into possession is of less value than the amount on which the fee is calculated. In such cases, whether the loss fall upon the plaintiff or the defendant, injustice is the result. In the majority of instances, however, the loss falls upon the plaintiff, as the fees are a prior charge upon the goods seized, and, consequently, the fruits of the execution are less capable of satisfying the plaintiff's demand.
The fee on proceedings for the recovery of tenements, also requires modification. At present, it is paid upon the annual rent or value of the tenement sought to be recovered.
The Commissioners think that the fee should be regulated by the rent or value for the term of demise, whatever that may be, not exceeding one year. Thus, if the premises are demised for a week, month, or other period less than a year, fees only in proportion to the amount of the rent or value of that term should be taken, such value to be determined, if necessary, by the clerk.
In cases of jurisdiction by consent, under section 17 of 13 & 14 Vict. c. 61, the fees are at present calculated on the sum of 50%.
The Commissioners think that in claims where the parties may, by consent, give jurisdiction to the County Court, under the above section, the fees should not be calculated upon a greater amount than that of 201. The number of cases under the consent clause, tried in the County Courts, has been exceedingly small, and, therefore, the diminution of revenue in consequence of lessening the fees in question must be almost nominal, and not sufficient therefore to justify an exception to the general rule, that the fees should not be calculated on a greater amount than 207.
The fees of the third class are those payable in respect of appraisements on executions under the 9 & 10 Vict. c. 95. Where an appraisement takes place on an execution, the appraiser is entitled to 6d. in the pound on the value of the goods for the appraisement of them, besides the stamp duty; and, in respect of advertisements, catalogues, sale and commission, and delivery of goods, 18. in the pound on the net produce of the sale. A difference of opinion exists between some of the persons consulted, as to the propriety of continuing this fee; some are of opinion that appraisement is a useless form; others, that it is a useful and necessary check on the proceedings of the bailiff in enforcing executions.
The Commissioners are in favour of the latter opinion; but they think that the appraisement ought to be rendered more efficient by requiring the appraiser to affix a specific price to the different articles to be sold, instead of adopting the present mode, which is, in general, to put one total The fee payable on proceedings in re- amount as the value of the whole property plevin, they think should also be altered. to be sold. By the mode proposed, the At present, it is regulated by the amount practice of selling goods at a sacrifice would distrained for, whereas, from the nature of be checked, and friends or relatives might replevin itself, which seeks to recover be willing to purchase, for the benefit of the things distrained, the value of the things defendant or his family, certain articles so distrained ought on the principle of which are now involved in one common poundage to regulate the amount of fees valuation. No difficulty would arise in payable. compelling the persons who act as ap
praisers to perform their duty in the way suggested, as by law those who act in that character are appointed by the high bailiff, with the written sanction of the Judge.
Next, with respect to the fourth class of fees, which are receivable by the bailiff, in respect of distresses made after notice of rent due, when executions are levied. By adopting the provisions of the 57 Geo. 3, c. 93, which now regulate those fees, injustice is done to the tenant where a small amount of rent is distrained for; and to the bailiff, where a large amount is claimed.
The Commissioners think that the fees on distresses would be more properly calculated on the same scale as in executions. By adopting the principle applied in executions, the fee being proportionate to the amount, the objections would be obviated.
From the inquiries made, the Commissioners are led to believe that the alterations suggested in the existing fees would be productive of an increase of the revenue produced by the Courts.
II. The Commissioners have next considered whether the amount of fees can properly be reduced?
They first discuss a question which is preliminary but essential to this branch of the inquiry, that is, whether the County Courts should be self-supporting? They are of opinion that they should not. To compel the suitors to pay fees sufficient to support the establishment appears unjust in principle, as that which is for the benefit of the public should be supported by the public; but that at present, financial reasons will render it impracticable to reduce the fees in strict conformity with the principle enunciated. They think, therefore, that the suitors should pay an amount of contribution sufficient to remunerate the clerks and high bailiffs of the Court, and that all other expenses of the establishment, such as Judges' salaries, buildings, stationery, and other matters, should be borne by the public revenue.
The Commissioners have prepared a scale relating to the first and second class of fees, which, assuming the present amount of business of the Courts to continue, will produce a sum equal to the present amount of remuneration received by the officers.
In the scale they propose, the general principle of the existing scale, so far as the gradual increase in proportion to the amount of demand is concerned, is adopted.
First, to abolish the general Fund Fee Per which will have the effect of re- Annum. lieving the suitors to the extent of £37,000
Secondly, to modify the hearing fee
where the parties consent to a judgment. At present, the fee payable on a judgment to which the defendant consents is the same in amount as that payable on a judgment where the claim has been disputed and the cause tried. They propose to reduce that fee from 2s. 3d. in the pound, the fee now paid, to 1s. in the pound on the amount of the claim. This would relieve such suitors to the amount of about Thirdly, to abolish the fees on payment of money into and out of Court and on notice of payment into Court, now producing the sum of about
Fourthly, to discontinue the bailiff's
mileage fee on serving and executing process. This fee produces
Sixthly, to abolish the fees on issuing
Fees on subpoenas, which now pro-
Fees to the high bailiff for issuing
warrant to the clerk of another Court, which now produce about Seventhly, they further recommend that the summons and service fees, together amounting to 8d. in the pound, should be reduced to 6d., and the hearing and service or order fees, together amounting to 2s. 3d. in the pound, should be reduced to 2s. This will have the effect of diminishing the produce of these fees by about
The total of the sums produced annually
The fees which they propose to abolish by the fees which the Commissioners pro
or modify are as follows: :
Report of the Commissioners on County Courts:-Fees.
pose to discontinue or reduce is rather less diction of the Court, the above-mentioned than one-half of the present annual amount poundage and fees are to be taken; but where (253,5187.) levied on suitors. the sum demanded is above 201., the poundage is to be taken on 201. only.
With the third and fourth classes of fees, which are received by the bailiffs and appraisers, the Commissioners do not propose to interfere, except by the alterations already suggested.
The fees in insolvency and protection cases are of a special and occasional nature, and therefore cannot conveniently be made part of a general scheme of fees of Court. Besides, the duty performed by the officers are in many respects of a nature different from those devolving on them in other matters. When the Commissioners consider the jurisdiction in insolvency and protection cases, it may probably be found desirable to modify the present scale, and to define more strictly the fees to be taken. The payment of 58. to the jury to continue.
With the above suggested modifications and diminutions, the following will be the proposed
Table of Fees.
For every plaint,-6d. in the pound on the amount of the demand.
Notice. No other fee whatever is to be taken on the entry of a plaint.
Judgments by consent under the 13 & 14 Vict. c. 61, ss. 8 and 9, and judgments by default,-1s. in the pound on the amount of the demand.
For every hearing,-2s. in the pound on the amount of the demand.
Notice. No other fee whatever is to be taken for the hearing or trial of a cause. For issuing any warrant against the body or goods, 1s. 6d. in the pound on the amount for which such warrant issues.
For application for new trial, or to set aside proceedings,-6d. in the pound on the amount of the demand.
Notice.-No other fees than the above to be taken, on any account whatever. No increase of fees shall be made by reason of there being more than one plaintiff or defendant.
High Bailiff's Fees.
In all cases of jurisdiction conferred on the Court in pursuance of the 13 & 14 Vict. c. 61, s. 17, the poundage is to be calculated as upon the amount of 201.
All fractions of a pound, for the purpose of calculating the poundage, shall be treated as an entire pound.
amount of his claim, so as to reduce the scale Where the plaintiff recovers less than the of costs, the plaintiff to pay the difference.
The several fees payable on proceedings in replevin to be regulated on the above scale, by the value of the goods distrained, and on proceedings for the recovery of tenements, by ement, according to the letting or value of the the yearly, monthly, or weekly rent of the tentenement sought to be recovered; but in no case to exceed the fees payable on a demand of 207.
In cases of interpleader, the summons shall be issued and the cause heard without the previous payment of any fees; but the costs of the summons and the poundage for the hearing shall be estimated on the value of the goods claimed, and shall be included in the general costs. The value of such goods, in case of dispute, shall be assessed by the Judge, who in his discretion at the hearing shall direct whether any and what costs shall be paid, and by, and to whom.
Subpoenas to be issued gratis, but must be served by the parties or their agents.
The Commissioners propose, that the fees, or sums in the name of fees, mentioned in the above table (with the exception of the fees called "High Bailiffs' Fees"), shall form a fund out of which the clerks and high bailiffs of the Courts shall be paid the salaries and allowances hereafter suggested.
For the reasons already stated, the Commissioners recommend the suggested diminution in the amount to be raised by fees, even though the business of the County Courts should not be increased.
Judging, however, from experience, an increase of business, producing an increase of revenue, would probably be the result. Thus, a deficiency of 36,000l. on a revenue of 252,000l., or one-seventh, was more than half supplied in 1851, in consequence of the diminution in the amount of the fees
For keeping possession of goods till sale, per day (including expenses of removal, storeage of goods, and all other expenses whatever), not exceeding five days, 6d. in the pound on the value of the goods seized. [This, however, does not apply to cases of interpleader, and more just and convenient mode of colin which the costs and expenses of possession lecting them. are to be in each case specially allowed by the Judge, but which shall in no case exceed the costs incurred by the bailiff in keeping possession.]
N. B.-In cases within the ordinary juris
The Extension Act, 13 & 14 Vict. c. 61, and the existing scale came into operation about the same time. An increase of revenue to the amount of 36,000l., produced by cases under the extended jurisdiction,
was the result. Since then, a variety of exceed 200, the salaries should be increased other Acts of Parliament have passed con- by sums of 51. for every 25 plaints, up to ferring new jurisdiction on the Court, from 1,000 inclusive, and then by sums of 47. for which, as fees must be paid on the new bu- every 25 plaints up to 6,000 inclusive; siness introduced into the Court, a corre- but in Courts, where the plaints exceed sponding increase of revenue may be antici- that number, the amount of increased pated. The recommendations contained in salary should be at the discretion of the the present report, if adopted, would also to a certain extent increase the jurisdiction, and render the Court a more efficient tribunal.
One advantage attending the scale last suggested would be the simplification of the accounts of the Court. This would lead to some diminution in the expense.
REMUNERATION OF CLERKS AND HIGH
The Commissioners then proceed to another important branch of the inquiry,namely, the proper mode of remunerating the clerks and high bailiffs of the Courts.
At present, although every clerk and high bailiff receives a certain amount of compensation for his services, yet in a very large majority of instances, such an amount of remuneration is not received as is calculated to secure the services of efficient officers.
Lords Commissioners of her Majesty's Treasury. Out of the salaries now appointed, the clerk should be required to pay the salaries of the clerks he employs to assist him.
According to this computation,-The Clerks Salary on
1,000 plaints would be about £220
on 6,000 and upwards
With reference to those clerks, who have been placed by the Government on salaries varying from 500l. to 6007, the principle above stated should only be applied in remunerating their successors.
Secondly, with reference to the high bailiffs.
This leads to the consideration of a pre-vary on the same principle as those of the They propose that their salaries should liminary question which has been much discussed, as to whether the clerks and clerks, but should only be one-fourth of the high bailiffs should be paid by fees only; amount to which the clerk is entitled. by salary only; or partly by salary and partly by fees.
The Commissioners come to the conclusion that it would be desirable that the clerks should be paid by salaries, and that such salary should be subject to a periodical revision by the Treasury.
In the case of the high bailiff, however, the duties of his office are of so peculiar a description, and the efficient discharge of
them so little under the immediate control of the Judge, that a strong interest in the complete performance of his duties ought to exist. They think, therefore, that besides his salary, he should be allowed such remuneration in respect to mileage and executions as, with reference to the circumstances of each district, the Lords Commis sioners of her Majesty's Treasury may from time to time direct.
First, with reference to the clerks. The Commissioners propose that the clerk of each Court, in which the plaints entered do not exceed the number of 200 a year, should have a salary of 60l. per annum, and that in Courts where the plaints
This, we think, is a suitable proportion to preserve between the salaries of the two officers, having regard to their respective duties, and taking into consideration that they are to be additionally remunerated for executing warrants and for mileage on the service of all process.
County Courts will, by the adoption of this It appears that the expenditure of the scheme, be increased by about 30,0007. per annum beyond the present revenue.
This scheme of salaries, the Commissioners think, should be adopted whether the existing fees, modified as suggested, continue to be taken, or the table mentioned in the second part be introduced into the County Courts.
LAW OF MORTMAIN.
BILL TO AMEND THE LAW RELATING TO
should be given, granted, &c., in trust or for