Differences in the Mercantile Laws of England and Ireland from Scotland.

Construction of Statutes:-Judges' Salaries.-Taxes on Administration of Justice.

CONSTRUCTION OF STATUTES.

179

the following Courts, payable out of the Consolidated Fund, or a grant of Parliament, are as follow:

Court of Chancery (England). £39,000 0 0

ORDER UNDER S. 52 ON DEATH OF OF- Queen's Bench

FICIAL ASSIGNEE..

THE supplemental order to be obtained on motion under the 15 & 16 Vict. c. 86, s. 52, upon the death, pending the suit, of a defendant, the official assignee of a bankrupt, substituting his successor, is as of course and without affidavit in support. Gordon v. Jesson, 16 Beay. 440.

INJUNCTION UNDER S. 58 TO RESTRAIN
ACTION AT LAW.

On a motion for an injunction to stay further proceedings in an action at law, the Master of the Rolls said, “the 58th section of the Improvement of Jurisdiction Act does not destroy the plaintiff's right to the benefit of a discovery, in aid of his defence to an action at law, and it does not assimilate the practice,

Common Pleas
Exchequer
Insolvent Debtors' Court
Admiralty

Court of Chancery (Ireland)
Queen's Bench
Common Pleas
Exchequer

Insolvent Debtors' Court
Civil Bills' Court
Incumbered Estates' Court
Admiralty Court

Court of Session (Scotland)
Sheriffs' Court

28,000 0 0 27,000 0

OF JUSTICE.

£95,560 0

THE COUNTY COURTS.

completely and entirely, to that in special in- TAXES ON THE ADMINISTRATION junctions, but so far only as the nature of the case will admit,"—that is, the common injunc tion is not now to be obtained merely on the defendant's default, as formerly, but a primá facie case must be stated on the bill, and be supported by affidavit. Where, therefore, the defendant has not answered the bill, but has filed affidavits, stating facts, which if there were nothing more in the case, would be sufficient to displace the plaintiff's equity, yet, as it is quite possible that additional facts restoring that equity may be brought out by the answers to the interrogatories, the Court will grant an injunction till answer. The adoption of any other course would, practically, prevent the defendant at law obtaining the benefit of a discovery in such cases.

"The injunction will stay the trial, and on the answer being put in, the defendants may move in the same way as formerly and have the injunction dissolved, if cause is not shown on the answer. I do not, however, decide whether an affidavit may or may not be filed on the motion to dissolve." Senior v. Pritch ard, 16 Beav. 473.

い

JUDGES' SALARIES. Aavatu

PAYABLE OUT OF CONSOLIDATED Fund.

Ir appears from a return to the House of Lords, ordered to be printed June 1st, that the total amounts of the salaries of the Judges of

We have a hundred times during the last twenty years called the attention of the Profession to the enormous grievance of the fees paid by the suitors (in the first instance advanced by their attorneys and solicitors) at almost every step in an action or suit. We are aware that those who think "litigation is an evil," maintain that its extent should be checked by throwing a large it must be recollected that if not only the part of the expense upon the litigants; but Judges, but all their officers were paid by the state, there would still remain an ample impediment in the risk, uncertainty, and trouble of legal proceedings, and in the large and unavoidable outlay for witnesses, fees of counsel and attorneys. However cheap and expeditious may be the course of proceeding in any Court, the plaintiff, on of increasing his loss if he is unsuccessful the one hand, must always incur the danger or the defendant be unable to pay; and, on the other hand, the latter in resisting the claim encounters the risk of increasing the debt by his own and his adversary's costs.

Apart, therefore, from grounds of po licy, it seems just and right, and the first duty of the Government, to provide the means for determining questions arising either out of the doubtful state of the law, or the uncertainty of the facts upon which

180

Taxes on the Administration of Justice.

the Courts are to adjudicate. On this subject we avail ourselves of the observations of Lord Brougham in the debate of the 16th of May. His Lordship said

"It would be superfluous at this time of day, in the latter half of the 19th century, to enter into arguments to show the utter injustice and impolicy of any taxes whatever on law proceedings. Sixty years ago Mr. Bentham had demonstrated their entire and monstrous absurdity and iniquity.

in other words, the southern counties bear the whole coast of our militia, and our army, our navy, and our coast-guard, on the plea that they would immediately benefit most by the protection? Such a proposition would not be endured for a moment; yet this was the very thing, in another but not less monstrous manner, that you were now doing with the suitors in County Courts. They underwent the expense, the harassment, the vexation, the risk of litigation, by which the whole country mediately benefited, and for that reason they were made singly to bear a heavy burden of taxation besides,-a burden which operated not merely as a burden on the suitors for justice, but as an obstruction to the administration of justice itself.

"How would any one hear the proposition that a tax should be imposed, which a particular portion of the community-so many thousands, or tens of thousands,-should alone pay for the benefit of the whole? Yet that was the proposition of those who said that the "Let him put a case to his noble friend opsuitors in the County Courts should singly posite. Suppose-which heaven forfend!-a pay a tax the use of which was beneficial to the riot should happen in the part of the town whole community, that use being the adminis- which he honoured with his abode, or that fire tration of public justice, a matter manifestly should be attempted to be set to his mansion, for the benefit, not simply of the individuals and that he should have occasion to call in the immediately concerned, but of the entire body aid of the civil power, and then of the military of the nation. You single out a certain num- force, to save his property, his life, from deber of her Majesty's subjects, say 100,000 per-struction-how would he, when the object had sons, or whatever the number representing the been happily so effected, relish the intimation suitors in the County Courts might be, and that his property, his life perhaps, having been you say that these 100,000 persons should so preserved by the police and the soldiery, he pay the entire taxation imposed on the admi- must pay the bill of the police for attending, nistration of justice, which is a thing concern- and of the military for attending? He would ing the entire community, the community ac- reply, that he paid his share, as a member of cordingly deriving the full use of that benefit the community, of those taxes by which both which the 100,000 individuals are compelled police and military were maintained, in com singly to pay for-compelled, that was to say, mon with other purposes, for the protection of because in the assertion of a right, or in the the subjects generally; and he would protest repelling of a wrong, they resolved to put into that it would be very hard upon him, in addioperation that justice the administration of tion to all the alarm and anxiety, and perhaps which, in their case, served to benefit all the loss he had undergone, to pay all the cost of rest of the community, who yet were permitted the force which had been called in for his proto avail themselves of that benefit without con-tection as one of those subjects. Yet that was tributing to pay for it. Nor was even this the a parallel case with the case of the suitor in the worst feature of the abuse; for the persons who were thus mulcted by the State were precisely those who, from the very operation of the suit in respect to which they were mulcted, were least able to bear additional burdens. At the very moment when all the other expenses of a suit were, perhaps, weighing down a man -the professional charges, the cost of evidence, and similar necessary outlay-down came the Treasury with a demand, by way of tax, exceeding in amount, not improbably the whole of the charges for professional skill and labour. It was not enough that the suitor should pay for the skill, or the want of skill,- "The access of suitors to the County Courts that he should pay all the regular and fairly was obstructed by the fees which were levied understood expenses of his case and its conse- upon them, and the money thus extracted or quences. The Government must at that mo- extorted was applied to defray the salaries of ment overwhelm him with a monstrous tax. Judges and to provide the buildings in which "There was much talk just now of the de-suits were investigated. He conceived that it fences of the country-and heaven forbid a stone should be left unturned to render them complete!--but how would a proposition be received for casting on the frontier, or the southern coast, say, the whole burden of these defences, leaving the inland counties free from any contribution to the object?--for making,

County Court. The noble lord, on this supposition, would have to pay, not only for the military and police who had aided him in his particular need, but for military and police with whom he had nothing to do, and of whom he had thought himself quit on paying his quota, as one of the community, to their maintenance, So the County Court suitor had to pay, not only for the Judge, and the clerk, and the bailiff, and what not of the court in which his case was heard, but he had to pay a heavy tax for County Courts in all parts of the coun try, with which he had nothing to do.

was the bounden duty of a Government to provide for the administration of justice and to place the expenses of that administration of justice upon the community at large, instead of allowing it to fall upon suitors who could ill afford the payment. The Government ought not to aggra vate the weight which the bare fact of being

Taxes on the Administration of Justice.

181

suitors imposed upon men in such a position, of public affairs, it is a hopeless attempt to but they should throw the charge of providing throw any large part of this burthen on the for the administration of justice upon the com- Consolidated Fund. munity at large, because it was the duty of the Government to afford its subjects full protecAs, however the County Court Commistion in return for the allegiance exacted from sioners are busily engaged in the considerathem. He might be told that the plaintiff re- tion of those local tribunals, it will be usecovered the amount of the fees if the defendant ful to notice the several prominent statecould pay them, but in two out of three cases ments relating to them, comprised in Lord the defendant was unable even to pay the court Brougham's speech, and to offer some fees. At the very moment when a man might, explanations and remarks bearing on the by various accidents or misadventures, or by topics brought forward. the pettifogging, chicanery, or dishonesty, or We presume his malpractices of others, be suffering the greatest lordship was correctly informed of the loss, what did the Exchequer do? Why, the striking results on which he commented. moment when the suitor was complaining of According to the report in the Times, his the dishonesty of one party and the insolvency lordship stated that— of another was the very time chosen by the "The number of causes tried in the County Government for pouncing upon him, and sub- Courts-he ought rather to say, the number jecting him to still greater exactions, sharing, of actions brought in those Courts-upon the as it were, with knaves the fruits of their dis- average of the last six years was 435,641 yearly, honesty. This system reminded him of the and the amount involved was 1,400,000l. But story of a certain man who fell among thieves.' during the last three three years, since the exA person who appeared to be passing acciden- tension of the jurisdiction from 20l. to 50l., tally found him lying exhausted upon the the average amount of the suits brought for ground, and inquired, in sympathising tones, the last three years was 1,520,000l. yearly. 'Pray, what is the matter with you, sir?' 'Oh,' The number of suits brought last year was was the reply, a villain has run off with my considrably above the average, being in 1853, purse and my hat.' 'Why,' asked the false Sa- 484,000. Now, this was the way to try the maritan, are you quite exhausted?' Yes, uses of the County Courts, and to estimate almost entirely.' 'Try, can't you move little? No, I cannot stir.' a the extraordinary benefits which had been deOh, then, if rived from them :-How many suits had been that is the case,' said the interrogator, I'll brought in the Superior Courts before the take your wig.' Now, that was just the con- establishment of the County Courts? 120,000 duct of the Government in this instance. They a year. Since the establishment of these Courts found the suitor plundered by the malpractices the number had been, of couse, lessened conor insolvency of others, and they said to himat the time he could least afford it- Come, pay these fees; they are only 31. 11s. 8d.; it is true that in the Court of Queen's Bench the same fees are only 17s., but they are 31. 11s. 8d. here, and you must pay.'

the

It

siderably (by one-third), and they amounted now to 81,000, instead of 120,000. But now he prayed their lordships to consider what these facts proved. What they absolutely demonstrated was, that there was a complete denial of justice previously to the year 1847, and beIn this debate the attention of Lord fore the establishment of these Courts; for if Brougham, as we have thus seen, was 120,000 suits were all that were tried in all the principally directed to the taxes on Superior Courts, and if the number tried during proceedings in the County Courts. the same average of the last six years had been appears that no less a sum than 260,000 deduct the 120,000 which the Superior Courts in the County Courts 435,000, you had only to is on the average annually paid by the would have tried from the 435,000 which suitors for the salaries of the Judges, were tried in the County Courts, to ascertain officers, and other expenses of these local what amount of cases were perfectly incapable Courts, being for the most part 20 or 30 of being tried before them, and consequently per cent. on the sums recovered. If such to ascertain in what number of cases there was an enormous expense for the mere manot only a great failure in, but an entire and chinery of the Courts, exclusive of the pay-315,000 cases which, but for the County complete denial of. justice. You had thus ments to witnesses, counsel, and attorneys, Courts, would not have been tried, and in all had been known at the time they were pro- of which there would have been a complete posed, it is very probable that the project denial of justice. Now, it would be a very would have been rejected altogether or ma- great mistake to suppose that the number of terially modified. Perhaps the then exist- causes and the sums for which those suits ing Courts of Request would have been improved and rendered uniform in their limited jurisdiction. The result is now so monstrous that we need not marvel it should be brought prominently before the Legislature; and yet in the present state

were brought gave anything like an accurate measure of the benefits derived from these Courts. Very much the reverse, for you must

These small debts were previously reco verable in the Courts of Conscience. There was no denial of justice.—ED.

182

Taxes on the Administration of Justice.

take into account the vast number of cases raised by direct taxation for fees. He would which were settled without the suit being not mention, without some comment, the word brought, and which, from the knowledge on fees,' which had apparently given rise to the the part of the defendants that this Court ridiculous errors made by a portion of the pub. existed and that suits might be brought into lic press in supposing that those who comit, were settled without driving their adver- plained of the fees of the County Courts were saries to the necessity of suits at all. It was, enemies of those Courts, because those writers of course, quite impossible to estimate accu- seemed to confound the question of fees with rately what the amount involved in those cases the other perquisites of the officers. In talkwas, but, no doubt, it was very considerable. ing of fees he meant the Court fees-the taxes There were other indirect advantages derived imposed by the Government upon the suitorfrom the establishment of these Courts-he taxes which were taken in Court, and were would not say equal to the direct benefits they certainly taxes upon suitors. Those taxes conferred, but still of very great importance. amounted upon an average of the last two years, He would only mention one. Great improve- 1852 and 1853, yearly to 261,000l.; the sums ments in the law had been facilitated by them. recovered by these Courts and in respect of His noble and learned friend on the woolsack which these taxes were imposed-these "Court would bear him out in the assertion he was fees,' as they were called, were exacted were about to make that he did not think he should 859,000l.; and the sums sued for amounted to have had the least chance of passing that im- less than 1,500,000l., making a percentage of portant Bill to which he had the good fortune 17 upon the amount sued for, and 30 per to obtain the assent of Parliament two or three cent. upon the sums actually recovered. By years ago he meant the New Evidence Act, sums recovered he meant those recovered by admitting parties to give evidence in their own judgment and those paid in. About 17 per cases, and now completed by the Act of last cent. was, therefore, levied in the form of year-it would have been hopeless to attempt taxes upon suitors in these Courts upon the to pass such a Bill but for the experiment sums sued for, and 30 per cent. upon the sums which had been made in the County Courts, recovered. There were differences, of course; but that the success of that system demon- in some cases the proportion was less, but, strated it ought to be made general. He then, in a great many others the proportion thought he might venture to enunciate these was a deal more than 17 per cent. propositions founded upon the facts which he had laid before their lordships.

"It was too late to think of retracing their steps; that they could not begin to halt in the work of improvement; that they could not dream of restoring the central jurisdiction and abolishing the local jurisdiction; that the system of local jurisdiction was rooted deeply in the affections of the community, and was so intimately connected with their most immediate interests, that the notion of a retrograding movement was out of the question; and that this was now for ever to be considered as a part of our national jurisprudence. For this very reason it became them, it behoved them to lend all manner of attention to the improvement of the system, to introduce all such extensions as might judiciously and safely and upon due deliberation be propounded; and he therefore did hope and trust that the important commission which had now been sitting for the best part of a year upon the consideration of every matter relating to the County Court judicature would be enabled to suggest some very important improvements in this judicature.

"The last of the propositions which he grounded upon the facts he had stated to their lordships was this that they ought, above all, to endeavour to relieve these Courts from the burden of taxation under which they now laboured. To what extent was this? He should not take the average of the last six years, but he would take the average of the last two years in order to show this; and he found from the same papers, now on their lordships' table, the average of these last two years the sums

"He had in his hand three or four bills which had been paid by County Court suitors, and which amply illustrated his position. In one case, where an action had been brought in a metropolitan County Court, the amount sued for was 171. 8s. 9d.; here the taxes of which he spoke-the Court fees-were 47. 188. 4d., being pretty nearly the 30 per cent. he had mentioned. In that case the attorney's bill, comprehending the whole profits of the professional man, was 24. 16s. 8d.,-that was to say, the professional man, for all his pains and cost and skill and labour, received 27. 16s. 8d., while the Treasury, in consideration of none of these things, but merely as taxes, received 4l. 183, 4d, or nearly double what the attorney received. In the next case the per centage was still more; that was a case in one of the Courts in London -one of the city Courts; the sum sued for was 14/. 3s. 6d.; the Court fees were 71. 5s. 9d., being 517. per cent. In a third case, in a Here. fordshire County Court, the amount sued for was 187.; the Court fees there were 101, 11s. Id., being 55 per cent. on the sum sued for. In another, the crowning case of those he should cite, an action was brought in a Kent County Court-an action for trespass brought under the optional clause by the consent of both parties; here the sum sued for was Treasury 51 How much did their lordships suppose had mulcted the suitor of in this case by way of taxes, of Court fees-independently of all professional remuneration, of all other expenses in other respects? Not 30 per cent., not 51 per cent., not 55 per cent., but 150 per cent., and more than 150 per cent.! Upon this sum of 51. the Court fees exacted were no