488

Analytical Digest of Cases: Common Law Courts.

made supplying these matters. If an order is | defective in these respects, and no subsequent order supplying the deficiency is proved to have been made, the examinations taken under a commission thus irregularly issued cannot be received in evidence. Greville v. Stulze, 35 L. O. 338.

DEATH.

Returns of East India Company.-The returns made to the East India Company admitted as evidence of the death of one of their servants who died at Delhi. Marks v. Marks, 35 L. (. 292.

SET-OFF.

Arbitration. A particular of set-off for 201 12s. 6d., for work done to a house and shop, specified certain items, and then concluded, and sundry work, nails, &c." At the hearing of a reference of the cause before a legal arbitra tor, it was proved that the value of the specified work was 91., but under the words "Sundry work" the arbitrator (subject to the opinion of this court) admitted evidence of work on the premises to the amount of 101. 1s.: Held, that this evidence was rightly received by the arbitrator, and that if the plaintiff was in any way misled by the form of the particular, it was Proper custody of.-A deed more than 30 for him either to have applied for further par years old, creating a term to attend the inherit-ticulars, or when before the arbitrator, have ance, was produced from the custody of the he wished time to answer the evidence as to the asked for an adjournment of the reference, if plaintiff's attorney. Plaintiff was administrator to the trustee of the term. There was evi- claim. Eastham v. Tyler, 35 L. O. 325. dence that the attorney had acted for the family of the defendants, who were beneficially interested in the premises to which the deed related, and it was not shown for whom the attorney held the deeds.

DEED.

To prove the sending of a letter by plaintiff to defendant, a clerk to plaintiff deposed that he made up the letters, of which this was one, and placed them in a box in the room where he sat, and that the public postman invariably called every day and took the letters from the box.

Held, that such delivery to the postman was evidence for the jury that the letters had gone to the post-office. Skilbeck v. Garbett, 7 Q. B.

STAMP.

1. Transfer of mortgage.- New security.—A. mortgaged land to B. for a term of years. A. died, leaving the property to his wife for life, remainder to his son in fee. In consideration of the payment of the sum advanced by B., and a further advance, the widow and son joined in mortgaging the property to C. for the residue of the term.

Held, that C., by this instrument, took a fresh security, and that a deed stamp of 14. 15. was necessary, and that the ad valorem duty on the further sum advanced, as required by 3 Geo. 4, c. 117, s. 2, was not sufficient. Doe dem. Crawley v. Guttridge, 35 L. O. 327.

2. Distinct matters in one instrument.-Fur

ther charge. - A deed by which a copyhold estate is conveyed to a purchaser, and also a mortgage is secured to a third party as a secu rity for the advance of the purchase money, is not an instrument containing several distinct matters, within the meaning of the 12 Anne, ses. 2, c. 9, s. 24, and therefore, not liable to more than one deed stamp of 17. 15s.

A second and subsequent deed, by which the same estate is, by a covenant on the part of the mortgagor, charged as a security to the mort gagee for a further advance of money, is only further mortgage charge within the meaning of liable to the proper ad valorem duty, being only a the Stamp Act. L. O. 69.

Rushbrooke v. Hood, 35

3. Deed. Schedule.-Upon the trial of an interpleader issue, the plaintiff gave in evidence a bill of sale and schedule. The bill of sale assigned to him all the property in a certain house, stating, that "the chief articles thereaf were enumerated in the schedule." The Case cited in the judgment: Hetherington v. schedule was not in any way annexed to the Kemp, 4 Camp. 193.

846.

deed: Held, that the schedule was admissible in evidence without a stamp; the deed being sensible without the schedule. Dyer v. Green, 34 L. O. 525.

WITNESS.

Privilege from arrest,-A witness arrested on his way to the Court of Bankruptcy, by virtue of a warrant issued under the Small Debts Act, is entitled to be discharged from custody. In re Irwin, Exparte Hamer, 35 L. O. 197.

The Legal Observer,

DIGEST, AND JOURNAL OF JURISPRUDENCE.

SATURDAY, MARCH 25, 1848.

"Quod magis ad NOS

Pertinet, et nescire malum est, agitamus."

HORAT.

FEES IN COURTS OF LAW AND
EQUITY.

them and to drive them, but who should find himself called upon to pay a fare every time he used them. In the case of the private THE Accountant-General's return, pub- individual, such a demand on his purse lished in a recent number, shows a receipt would probably make him give up the carof fees in the Court of Chancery, amounting riage and horses. But the subject cannot during the past year to no less a sum than give up the courts and their judges and 137,2937. This somewhat startling amount, officers. There they are, and there the exclusive of upwards of 70,000l. a year from the Suitors' Fund, has been drawn from persons struggling for rights the enjoyment of which it is the duty of the government to ensure to every one of its subjects. There is not one of the fees that constitutes this very large sum that is not a reproach to the government, that does not in fact establish the great difference between its practice and its pretensions.

government insists that they shall be. And why? Let us take the most favourable answer that the government can give to this question, and, (putting out of view all reasons of dignity, power, and patronage,) suppose it to say-the courts are maintained because no one can foresee the time when he may need their aid, and the government must provide for even the possible wants of every subject of the Crown. Exactly so, Every subject of the realm is, it is said, and that is just the reason why no indibound to pay taxes, because property acquires vidual should pay fees when his wants its greatest value from the protection afforded compel him to enter one of these courts. to it by the administration of the law, and The answer shows that they are kept up for because that protection is afforded by the the whole community, not for the individual government. This is the theory of our law suitor. And that such is the real effect of and government. But the subject never re- the answer is evidenced by something else. quires the exertion of the protective powers! It is said that all the property in the kingof the government without being called on dom which does not come into litigation to pay for them specifically, and, we regret to be obliged to add, expensively.

Practically, therefore, it would seem, that the tribunals did not exist for the whole kingdom, but were created specially at the moment for the benefit of the individual suitor. He is in the situation of a man who should buy a carriage and horses, establish a place to keep them in, and servants to take care of

receives a value from that litigation to which the rest is subjected. The statement is true, but it proves decisively that Mr. 4., who never practically knew what a lawsuit was, obtains all the benefit of one from the fact that Mr. Z. has been compelled to undergo its troubles. Mr. A. therefore gets the full advantage of the existence of the courts from Mr. Z.'s misfortune. Surely this is a good reason why the expense of maintaining the courts should be borne justly and

Y

490

Fees in Courts of Law and Equity.

equally by Mr. A. and Mr. Z., and should| The appearance of labour must be not be thrown exclusively on the latter. kept up that the demand of fees may But old practice is against this view of have the semblance of justification. For the question, and old practice is allowed in this purpose the solicitor must be put this instance to overbear reason, truth, and to some unnecessary trouble, and the justice. In a former paper we stated what client burdened with much unnecessary exwas the origin of that practice, and one less pense. The trouble is not undergone withcreditable could hardly have existed. Its out cost. The solicitor must charge for time ordinary results are worthy of its origin. though that time is wasted, and for labour Fees have been created to make the neces- though that labour is useless. This is not sities of suitors subserve the purposes of his fault but his misfortune. The bill of patronage, and useless forms are multiplied costs is thus swelled by sums which both soto give a pretence for fees. Men are for licitor and client feel to have been uselessly ever being drawn round this vicious circle and needlessly drawn up from the client's of annoying and vexatious cause and effect, pocket for mere empty formalities, while the in which one evil produces another which skill and labour of the solicitor are left comreproduces the first, till the awful phrase of paratively uncompensated. Processes which Milton is almost literally verified. Let us serve no purpose, forms, the use of which it take a part of the evidence in proof of this would puzzle the most skilful and intelligent man to imagine, are heaped on each other;

statement.

time is wasted and delay is occasioned for no other end than to simulate a justification for the creation of those fees of office which ought never to have been invented, and which it is to be hoped will not long be suffered to continue. The removal of them would in fact be the simplifying of the process of the court. More time might be given to the consideration of the real merits of the case, if these absurd formalities were abolished, and the solicitor's bill would not be swelled by items which neither bring him credit nor profit in the discharge of his professional duties.

These objections to the system of payment of fees are strong enough. They affect the title to demand them. They show abuses of process attributable only to the desire to exact fees, and they prove the existence of evils which fairness and justice imperatively require the government to remove.

Mr. Field, pp. 26, 27, of the "Evidence on Fees in Courts Law and Equity," says, "I think the mode of collecting numerous fees is objectionable. I will give an instance of one office. In case an order is made to-day by the Lord Chancellor, and I have to draw that order up, I must go to the registrar; he will first give me a rough minute of the order; he will charge me for that minute, varying perhaps from a few shillings up to a pound. I have then to go to him, when the rough minute is made more perfect, and get it copied out in the shape of a more formal order. For that I must pay another fee. And when that formal order is drawn up and signed by him, I have to enter it with the entering registrar, and I have to pay another fee for entry. Now all those fees really are paid upon one single document, which is not completed till I have paid the last of them, and it is very obvious that nothing would But what is the effect of these fees upon be so easy as to receive all those fees upon the practice of the officers in another way. one occasion." Simple-minded Mr. Field. This inquiry opens up some evidence of a Nothing would be so easy,"-no doubt, strange, rather than of a satisfactory kind, but the ease of the business is the last thing for it appears that not only is necessary that would recommend it. The trouble gives business, as described by Mr. Field, subdithe pretext for the fee: the fee could not vided into many unnecessary details, but well be demanded without it. If A. re- copies of documents are actually charged ceived at once all the fees payable to him- for, though neither wanted nor made. self and to B. and C., and did at once all the work now pretended to be done by B. and C., there would be a direct call for the inquiry, where is the necessity for paying anything to B. and C.? And such an inquiry would be formidable. It would be very difficult to answer and quite impossi

ble to evade.

b Page 456, ante.

Mr. M'Leod, a solicitor in considerable practice, tells us that there are demands made on the pocket of the client for papers not really required in the progress of a suit, sometimes too not really furnished, but always really paid for. In page 88 of the evidence, Mr. M'Leod is asked, "Is copy money ever paid to your knowledge without copies being made?" He answers that it is, and then the following examination

Fees in Courts of Law and Equity.

491

takes place. "I hold a bill in my hand practitioner in every court at Westminster, amounting to 8047., in one suit, which I and who was the real living representative paid to one Master's Office." "For copy of Scott's masterly fiction. Such persons money?" Yes, not one of which copies will be found in all communities, as other has been made. But this sum was not all monomaniacs will, but the state that legispaid for copies. The Master's bill contains lates for all, on the sole principle of precharges for warrants and reports.' "What venting the follies of such persons, and that is that which was copied ?" "The Master debars millions from the means of enforcing charges for two copies of the report. One their just rights because one or two units was made, and that is the only copy of a may abuse those means, almost deserves to document made in this paper, except the be treated as equally monomaniac with transcript of the report. They were my them. own papers on the part of the plaintiff, and then the Master's clerk charges me with these supposed copies on the part of the defendant, which I did not want and which I never had."

But in truth the demand of fees, and especially of these fees for unnecessary labour or for labour never performed, cannot set up even the absurd pretence we have just noticed. The real origin of these fees We need not pursue this examination of court is to be found in the abuse of power; further at present, for we shall again and their real purpose that of providing for the again return to this subject. This single great or their dependants. In early times extract will serve to show that official fees the work, not now done at all, was done by may be cruelly unjust because wholly use- half-starved subordinates, while the great less. There can be no conceivable reason recipient of the fees was the hanger-on of why men should be charged for what they some powerful family, or a member of that do not want and what they do not have. family itself. For this reason it is, as we The needless accumulation of expense is shall show on a future occasion, that the not merely an error, but a wrong and a sin: useless receivers of fees were paid more it is in fact a legalized robbery, so much the largely than those who actually laboured in worse than a highway robbery, because, office. The courts offered facilities for exwhile it is in direct contradiction to the tracting money from the pockets of the subspirit of justice, it assumes its form and ject-the temptation was great-the return abuses its powers, and, by means of that certain-the danger of opposition indevery abuse, prevents the energy and courage finitely small, and thus from age to age has of the suitor from even hoping for a chance gone on a system, for the existence of which of successful resistance. We know that no good reason could be given, and which some weak-minded men have a fancy that was itself a wrong on the part of the governcosts ought to be multiplied in order to ment, but the individual sufferers from prevent people from "indulging in litiga- which were not united and powerful enough tion!" The persons to whom litigation is to obtain justice. Their own weakness is an indulgence are few, and those few are of now assisted by public opinion: the ina sort that no multiplication of costs will terests of the whole community and those check. The poverty of Scott's Peter Peebles of a powerful profession are inseparably did not prevent him from being a perpetual united in the demand for a redress of this suitor, nor in our day did costs bar from long tolerated injustice, and no efforts must the enjoyment of litigation Charles Pitt, be spared till it has passed into the catawhose appearance was familiar to every 'logue of " things that were."

The following is extracted from the Annual Return of the Accountant-General of the Court of Chancery, of the payments made by him out of the Suitors' Fund, from October 1846, to October 1847.

Must be added the Fees received and paid into the Suitors'
Fee Fund, the amounts of which were given at p. 457, ante 137,293 17 7

These payments out of the Suitors' Fund are exclusive of the payments to the Fee Fund, stated, p. 457, ante.