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Costs and Charges paid to Counsel and Attorneys on sums claimed
As well between Party and Party, as between Attorney and Client. Letter before suit,
Instructions to sue or defend,
Attendance and entering Plaint, including particulars of demand and copies, such particulars and copies being signed by the Attorney,
£0 3 0
0 5 0
0 10 0
The total amount of these items to be entered on the Summons.
Examining and taking minutes of the evidence of each witness afterwards allowed by the Judge, .
Attending Court and conducting cause where no counsel em
Attending to apply for Summons out of the district,
The amount of this item to be entered on the Summons.
If plaintiff abandon action, and give notice thereof, attending settling,
£0 3 0
1 10 0
Notice to produce, notice to admit, notice of application for a new
Mileage, or way from the attorney's place of business to place of
Preparing confession or statement of agreement under sec. 8 or sec. 9 of 12 and 14 Vict. c. 61, where prepared by plaintiff's Attorney, including all incidental attendances,
All necessary affidavits, including filing each,
Attending to enter up judgment by default,
Attending Court for an order to bring up a prisoner to give evidence,
.0 0 6
Instructions for, and drawing and copying brief in cases in which counsel employed, including attendance on counsel therewith, 2 Fee to counsel and clerk, sum paid, not exceeding,
Attending Court on trial, with counsel,
Attending in the last-mentioned cases with counsel,
Any attendance at the office of the Registrar, which he may upon
taxation think was necessary,
Every bond given under sec. 70 of 17 and 20 Vict. c. 108.,
Costs to be allowed on the same scale as on the original trial.
Attorney for attending Court where no counsel employed,.
Refresher fee to counsel and clerk,
Witnesses' expenses same as on trial,
Attending reference without counsel, for each sitting,
£0 10 0
0 15 0
0 10 0
1 3 6
0 3 0 070
0 15 0 0 10 0
1 3 6
0 15 0
Fee to counsel and clerk for each sitting, sum paid not exceeding 2 4 6 Witnesses' expenses same as on a trial.
It is not necessary to dwell on the contrast here presented, or on the ridiculous anomaly of saying almost with the same breath that our procurators must have a higher standard of education, but shall only have porter's wages. One year an Act is passed to exclude from the profession all but scholars and gentlemen, and, pour encourager les autres, we have next year another Act cutting down fees to a vanishing point. This bill either goes too far or it does not go far enough. If it is founded on a sound principle, let it be extended to other professions and branches of industry. Let it be enacted that the tailor and the grocer shall be limited to a certain maximum in selling their commodities, and that medical men shall have no other or higher fees than say five shillings for a fever, and half-acrown for a bad diarrhoea.
This section of the statute is at once unjust and impolitic-unjust because founded on the principle that the labourer is not worthy of his hire impolitic because it will degrade the administration of the law, and deprive the judge of that professional assistance without which justice cannot be administered. The scale of remuneration will drive all decent men out of our inferior courts, and leave their places to be filled by a pack of wretched debt-collectors, without education, and with no pretensions to refinement, or possibly reputation.
We shall always be the last to oppose any well considered amendment of the law. Let our method of procedure be shortened and
simplified as much as possible; but to whatever length this may go, something will always require to be done by the professional adviser of the litigant, and whatever he does, the lawyer ought surely to receive, like every other member of the community, the fair reward of his services.
No doubt by sec. 20 the Court of Session is empowered after due inquiry, by Act or Acts of Sederunt, to make such alterations by way of increase or decrease as shall seem needful in the fees or dues authorised to be taken, in contested cases. But if the Court of Session is to have such ample powers in this matter, what is the use of section 18? The two sections together are framed in a way to which the House of Commons, and Lord Redesdale in the House of Lords, are not in the habit of giving their sanction, for Parliament is here made to delegate its functions to the Court of Session. First it says certain fees must be charged; and then that the Court of Session may enact any other fees it thinks proper. If the Lords of Session are the proper judges of what fees may be charged, why has Parliament said anything at all on the subject? We venture to say that the statute book may be searched in vain for many years back for any similar instance of the House of Commons being committed to the folly of doing and undoing a thing in almost the same breath. This circumstance, in our apprehension, conclusively shows that the whole statute is a CHEAT. We understand that an honourable member was to have moved that it should be referred to a select committee; but by some means it was smuggled through Parliament undiscussed and unnoticed. For our own parts, we confess that though attending pretty closely to the proceedings of the Houses of Parliament, we were under the impression until the beginning of August that the bill was to suffer in the usual "massacre of the innocents," and that chiefly because we could not imagine that a measure of the kind could pass without some discussion of the principles (if any) on which it was founded. Who can tell, however, what principles lie at its foundation? What can be more absurd than its limitation to merchants' accounts and other the like debts subject to the triennial prescription? Why multiply our forms of process, when every one is crying for consolidation and simplification? If the new method is sufficient for the administration of justice in the cases enumerated, the same method ought to be no less efficient in all cases. A dispute about a tailor's bill is surely not a less complicated question than an action on a bill of exchange? The framers of this Act stand convicted on the very face of it of having no confidence in their own measure. We know not which to admire most, the duplicity of the Government, or the selfishness of the traders, who, beginning with the cry for law reform, are conciliated and pacified with a bill which appears to be sufficient for their own particular case.
But while the Act thus deals with the country procurators a curious exception is made in favour of practitioners in the Supreme Courts. Things there are to remain as they are. Section 18 applies
to "all matters done in any cause raised under the authority of this Act, except the expenses incurred in any appeal to the Court of Session, which shall be taxed and decerned for in common form," and these are to be regulated by act of sederunt in the usual way. The poor provincial procurator is driven to the wall without compunction, but the Edinburgh W.S.'s and S.S.C.'s are sacred! Now, as uninterested outsiders, we are bound to ask, Why is not equal justice done to them all? Who is most deserving of consideration—the man who prepares the case and pleads it, or the man whose sole duty is to receive the papers by post, hand them to counsel, and sit behind him when the case comes to be argued? Which is the greater evil, and the one most loudly calling for amendment, the cost of litigation in the Supreme Court or the Sheriff Court? If the former, why is it let alone? It is vain to get any intelligible answer to these inquiries; but this portion of the bill indicates a partiality which we venture to prophesy will defeat the very object which it was intended to serve. The legal profession in Scotland is not altogether without influence, and we shall be very much astonished if they do not at once betake themselves to those measures of retaliation which the authors of this act have unwittingly prepared for their adoption. The cry of the mercantile community hitherto has been, "Give us in Scotland the process of the English county courts." What if the lawyers should now join in that appeal, and insist that, quoad L50 causes, whatever is good for England is good also for Scotland ? Do the Parliament House coteries, which are supposed to have the ear of the Lord Advocate for the time being, understand to what this would lead? It would lead to the extension to Scotland of the County Court Amendment Act, which was passed this last session, the 7th to 10th sections of which are thus summarised by a writer in the Times:
"1. No debt whatever under L.50 can be sued for in any of the superior courts, except by leave of a judge of one of those courts. It may be safely said that such leave will seldom, if ever, be granted.
"2. No breach of contract causing damage under L.20 can be sued for in any of the superior courts (so as to entitle the plaintiff to his costs) unless the judge who tries the cause certifies that he approves of the action being brought in the superior courts. It may be safely said that such certificate will scarcely ever be given.
"3. No trespass or injury whatever can be sued for in a superior court for damages of a smaller amount than L.10 (so as to entitle the plaintiff to recover his costs), unless the judge who may try the cause shall certify the approval of the action. It may safely be said that such certificate will hardly ever be given.
4. No insolvent person can maintain any action for "malicious prosecution, illegal arrest, illegal distress, assault, false imprisonment, libel, slander, sedition, or other action of tort"-in short for any wrong or injury whatever-in any of the superior courts, unless he can find security for paying the defendant's costs in case the action
should be unsuccessful, or unless he can convince a judge that the action ought to be prosecuted in the superior court; and inasmuch as the actions above specified are for the most part actions which require neither much law, nor much learning, nor much capacity of any sort to dispose of them, and inasmuch as more time is usually employed in trying them than is employed in trying other actions, no discreet judge is likely to withdraw them from the county court."
Any of our readers can easily picture the sad havoc which would be made in Court of Session business were these rules in operation in Scotland, and it is probable that not a single session will pass before these and similar proposals are being debated in a committee of the House of Commons on the whole question of the existing arrangements for the administration of justice in Scotland. Such are the results of that modern system of legislating in the interest of middle-aged coteries, which is equally dear to Lord Advocates of Whig and Tory politics.
Meantime, as the Act is now in force, the profession must make up their minds to understand it and make the best of it. No doubt an action for a debt of L.50 may still be brought in the Ordinary Court, but in that case the expenses must be modified to the sums allowed by the Act. There is thus no escape from its operation. But we must reserve for our next number a few notes on some points of practice which a perusal of the Act has suggested.
Why should not Counsel be more employed in the Sheriff Courts? There might easily be a special debate roll for cases in which counsel are to appear, which the Sheriff-substitute might take on Monday. One can go and come between Edinburgh and all the leading towns in one day. Let the procurator keep his present debate fee for memorial to counsel, and let counsel's fee be limited to L.2, 9s. 6d. up to a certain sum-say L.25; L.3, 10s. 6d. up to L.50; and L.5, 5s. beyond it. A clever junior counsel should be able to get a good bag every Monday, if he attached himself to one court. It would do much to raise the tone of local bars, which do not always send their best men to the less remunerative work of the Court, and it would be of vast service to the Sheriff-substitute. An intelligent local practitioner writes to us that in his Court the debates are a perfect farce. "Procurators," he says, "never think of turning up a volume of Reports. Our Sheriff has just told me that he had spent two days this week cogitating on the question whether he could take a deposition under reference to oath, or was bound to grant a com