60

Report of the Commissioners on County Courts :-Fees.

The second objection, founded on the brought to his own home. This is an obvague language of Schedule D., was removed ject, however, which, though desirable, it by employing the language in which the is impossible completely to attain, but a present scale is expressed. greater approximation to its attainment may be made than is effected by the present scale of fees.

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 be equally divided among all the suitors of 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.

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.

61

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.

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 201.

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

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 pre-executions. mises are demised for a week, month, or The Commissioners are in favour of the other period less than a year, fees only in latter opinion; but they think that the approportion to the amount of the rent or value of that term should be taken, such value to be determined, if necessary, by the clerk.

praisement 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

62

Report of the Commissioners on County Courts :-Fees.

praisers to perform their duty in the way | First, to abolish the general Fund Fee Per 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.

which will have the effect of re- Annum. Secondly, to modify the hearing fee lieving the suitors to the extent of £37,000

where the parties consent to a judg-
ment. At present, the fee payable
on a judgment to which the defend-
ant 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 ls.
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 pay-
ment 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 execut-
ing process. This fee produces

about

Fifthly, to discontinue the bailiff's
mileage fee on conveying defaulting
parties to prison. That fee now
produces about

The bailiff, they propose, should be
paid in proportion to the distance
travelled by him in serving or
executing process, or conveying
committed parties, out of the
fund which the remaining fees
produce, in the manner already
suggested.

Sixthly, to abolish the fees on issuing
a judgment summons, which now
Fees on the hearing of the same
produces about
Fees on new trials
Fees on special defences
Fees on adjournments, which now
produce about

Fees on subpoenas, which now pro-
duce about :

Fees on application for leave to sue
out of the district, which now pro-
duce about
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

18,000

14,000

15,000

4,000

4,500

4,500

200

500

1,200

2,200

2,000

700

21,000

£124,800

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 than one-half of the present annual amount (253,5187.) levied on suitors.

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

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.

63

diction of the Court, the above-mentioned poundage and fees are to be taken; but where the sum demanded is above 201., the poundage is to be taken on 207. only.

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.

Where the plaintiff recovers less than the amount of his claim, so as to reduce the scale 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 the yearly, monthly, or weekly rent of the tenproceedings for the recovery of tenements, by ement, according to the letting or value of the tenement sought to be recovered; but in no case to exceed the fees payable on a demand of 201.

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 and more just and convenient mode of collecting them.

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, in which the costs and expenses of possession are to be in each case specially allowed by the The Extension Act, 13 & 14 Vict. c. 61, Judge, but which shall in no case exceed the and the existing scale came into operation costs incurred by the bailiff in keeping pos- about the same time. An increase of resession.] venue to the amount of 36,000l., produced N. B.-In cases within the ordinary juris- by cases under the extended jurisdiction,

Report of the Commissioners on County Courts:Fees Law of Mortmain.

exceed 200, the salaries should be increased by sums of 51. for every 25 plaints, up to 1,000 inclusive, and then by sums of 47. for every 25 plaints up to 6,000 inclusive; but in Courts, where the plaints exceed

was the result. Since then, a variety of other Acts of Parliament have passed conferring new jurisdiction on the Court, from which, as fees must be paid on the new business introduced into the Court, a corresponding increase of revenue may be antici- that number, the amount of increased pated. The recommendations contained in the present report, if adopted, would also to a certain extent increase the jurisdiction, and render the Court a more efficient tribunal.