Cornell University Libra CORNELL UNIVERSITY LIBRARY S BOOK IS ONE OF ECTION MADE BY BENNO LOEWY 1854-1919 CORNELL UNIVERSITY a ee ee é rr he LEO ec i, a 2 ee ley. 1992, beid lamas Telerau hes prok: a : Dah fn hw y cane if: \ Pe L ee Pe Ay af ah Ene PL ar, Noten ROccin He es ie. Ha Letiz Sit. db at Ade saa Figred x: ON COUNTY COURTS, LOCAL COURTS OF RECORD, AND ON THE CHANGES PROPOSED TO BE MADE IN SUCH COURTS IN THE SECOND REPORT OF THE JUDICATURE COMMISSIONERS. ‘By THOMAS FALCONER, Esq, One of the Judges of County Courts. LONDON: STEVENS AND SONS, 119 CHANCERY LANE, W.C. 1873. GOKRELI | UNIVER ERLY Ct Aa 6090 De7 A eT TRINTED BY C. W. REYNELL, LIITLE PULTENEY STREET, TIAYMARKET, W. NBN @D "VILE SSW Ysa hie ON COUNTY COURTS.’ N 1867 a Royal Commission was issued, appointing Lord Chan- cellor Cairns, several of the Judges of the Superior Courts, the Attorney and Solicitor-General, and others, to be Commissioners to inquire into the operation and effect of the present constitution of the superior and certain inferior Courts of Law. In October, 1869, there was a new Commission, when one County Court Judge was added, and the Commissioners were directed to include in their inquiries the operation and effect of the present constitution of the County Courts and of Quarter Sessions, and of all other inferior and Local Courts, both civil and criminal, in England and Wales. In November, 1872, a third Commission was issued, when the two Chief Justices, the Chief Baron of the Exchequer, ard the present Solicitor-General were made Commissioners. The interests of the public in the County Courts were weakly cared for and the interests opposed to such Courts were strongly represented on each Com- mission. The first Commission was dated September 18, 1867, or six years since, when Lord Cairns was Chancellor. The Commis- sioners were :— The Right Hon. Lord Cairns, Lord Chancellor. *The Right Hon. Lord Hatherley (then Sir W. P. Wood). The Right Hon. Lord Penzance (then Sir J. P. Wilde). *The Right Hon. Lord Selborne (then Sir R. Palmer). The Right Hon. Sir W. Erle. *The Right Hon. Sir W. M. James (then Q.C.) *The Right Hon. Sir M. E. Smith. *The Right Hon. G. W. Hunt. *The Right Hon. H. E. C Childers. *The Right Hon. A. 8. Ayrton. The Hon. Sir Colin Blackburn. *The Hon. Sir J. R. Quain (then Q.C.) *Sir J. B. Karslake, M.P. *A, C. Rothery, Esq. (Registrar of the Admiralty Court). *John Hollams, Esq. (Solicitor). *F, D, Lowndes, Esq. (Solicitor at Liverpool). Thomas J. Bradshaw, Esq. (Secretary). ® Some pages of this pamphlet formed part of a Lecture ‘On County Courts,” delivered at the Royal Institution of Swansea. 4 On County Courts. There were added by Royal Warrant dated October 22, 1867 : *The Right Hon Sir J. R. Phillimore. *The Right Hon. Sir G. W. Bramwell. *W. Gandy Bateson, Esq. (Solicitor at Liverpool). There were added by Royal Warrant dated January 25, 1869 : The Right Hon. Sir R. P. Collier. Sir J. D. Coleridge, M.P. A supplemental Commission was issued October 9, 1869, when there were added: *The Right Hon. Sir J. S. Willes (deceased). *Charles S. Whitmore, J.C C., and Honorary Q.C. *® *George Moffatt, Esq., M.P. On November 27, 1872, a new Commission was issued, and there were appointed in addition to the former Commissioners : The Lord Chief Justice of England. The Lord Chief Justice of the Common Pleas. The Lord Chief Baron of the Exchequer. The Right Hon. Sir George Jessell, now Master of the Rolls. And subsequently by Royal Warrant: The Right Hon. Sir Sydney H. Waterlow (Lord Mayor). R, A. Fisher, Esq., (Barrister, was appointed Secretary in 1872). » The first Report was dated March 25, 1869, aud the second, relating especially to County Courts, is dated July 3,1872. Those whose names are marked (*) alone signed the Second Report. The evidence given to the Commissioners was that of : 1. The Judges of the County Courts. Of the sixty Judges who made replies in 189, thirteen have since died and six have resigned.» " Described, not as Judge of County Courts, but as “one of our Counsel learned in the Law,” though forbidden to practise as such on becoming a Judge of County Courts, > Judges who have died since 1869:—Bagshaw, Q.C.; Bevan; Blair - Biawchaed ; Collyer; Dinsdale ; Ellis MeTogears 3 A. $ Johnes ; Siendene Stansfeld ; Teed, Q.C. ; Temple, Q.C. ; and Welford :—13. : Resigned since 1869 :—Gurdon ; Skinner ; Stapylton; Greene; Sir J. E, Eardley-Wilmot, Bart., and Macnamara. Seventy-four C.C. Judges have died since 1847, and thirteen are on the Bench of the first sixty-seven who were appointed in 1847 to 1851; te, out of these sixty-seven Judges there have died or resigned fifty-four. Twenty-five Judges have died of those appointed since 1847, The total number of appointments have been 133. On County Courts. 5 2. Registrars of County Courts, but only thirty-seven sent in replies. 3. Judges and Officers of old Local Courts of Record. 4. Representatives of Law Societies, some of whom gave evidence showing wonderful ignorance, unchecked by any of the Commissioners, respecting the subjects on which they spoke. 5. Unofficial Barristers and Solicitors, and 6. Representatives of Trade Protection Societies, whose papers are honestly and well prepared. The County Courts are not to be regarded as a new institution. There is no necessity to dwell on their history. It is sufficient to notice what the County Courts were when the Act of the year 1846 was passed which instituted the present system. That Act recites “that the County Court is a Court of ancient jurisdiction, having cognisance of all pleas of personal actions to any amount, by virtue of a writ of justicies issued in that behalf.” The ancient County Court assisted the Sheriff in the government of his county and had cognisatce of the pleas of the Crown. That such Courts existed before the Norman conquest, more especially regulated by the Saxon King Edgar, shows at how early a period of time regular govern- ment, with the security and blessings which it brings, had been acknowledged in England. The condition of the County Courts of the old system in the year 1846 may be ascertained from a Parlia- mentary paper printed by the order of the House of Commons in the year 1839, and which was obtained on the motion of Mr Leader, formerly M.P. for Westminster. It is one of those Blue Books which ignorant people frequently speak of in terms of contempt, but which in fact contain more valuable and detailed information on historical, social and political questions, through a long period of time, than are to be found in the publications of any other kingdom of the world. Take the second county named in it on the list of counties. It is that of a Welsh county and is signed by the County Clerk; but unlike the County Clerks of English counties who signed other returns, it is signed without a Christian name—‘“‘ Watkins—County Clerk.” If he had a baptismal name an idle affectation extinguished it. The county is Brecknockshire. The ordinary jurisdiction of these Courts was for forty shillings only; but the return gives a scale of costs above, and another in cases under, forty shillings. The list of charges was a long one: 6 On County Courts. Affidavit of service of notice of action and oath Attending entering action Appearance Accomodation fee after declara- tion filed, or rule to plead or declare in all cases Advocate’s fee on trial Attorney’s fee on inquiry Attorney’s fee on interlocutory judgment Ditto on final judgment .. Attending taxation Attending paying debt and costs Bailiff summoning a jury Bill of costs and copies Bailiff executing fi. fa............. Copies and service of rule, each Copies of subpeena, each......... Conduct money..............ceccee Court fee when any step taken Copy and service of notice to tax Copy and service of summons to stay proceedings or pay- ment of debts and costs ... Copy and service of supersedeas Declaration Drawing particulars of demand to be delivered with decla- FAblON eopereosskisodenbenea: x Drawing particulars of set off, copy and service Drawing cognovit and atten- dance [This is explained in another return—‘‘ Debts recovered on a cognovit included pre- vious costs.” The opportu- nity to plunder was great. ] Drawing verification Drawing security for costs Fee on ‘‘issued joined” for plaintiff ......... eee Doe FPF BDRBOARBOCMDDMOD © & OO aoe ea aoe The like for defendant............ Fiat for subpeena ....... si Fee on transcript .. Ditto on renewal Hall-keeper, on a trial Jurors, each Instructions and warrant to sue Interpreter (and the Judge and Jurors, &c., Welshmen) ... Motion for time to declare...... Notice of action, copy and BETVICS oiegtesids ckesaarte ease Notice of trial, copy and service Notice of inquiry, ditto Notice of comnion rule and all other rules..........0......066+ Plea of general issue .. eu Pleadings according to length... EPlondines were much recom- mended before the Judica- ture Commissioners during the examination of Sir Jos. Heron, Mr Mountain, Mr Rayner, and Mr Fleet [Evi- dence, p. 219], and by Mr West, Q.C., and Mr Kay, Q.C., of the Salford Hun- dred Court, where, out of 8,252 writs issued in 1871, only 116 tried !] Rule to plead causes were Rule to reply.......... eee Rule for particulars ‘of set off Replication according to length Service Special motions, each Special pleas according to length ditto Special replication Similiter...........0... Special attendance Common cost of judgment by default WOoOCONDOHHE CWS COM CO SCHMadGcaane oO BRAOOAMDOOSCSO The scale of fees in actions for £2 and upwards were double the above. _ The practice in Glamorganshire was, that attorneys themselves issued what was called “a Sheriff’s ticket,” demanding the payment ; Afterwards the Under-sheriff required that the ticket should be brought to him and sixpence was of any sum under forty shillings. paid on its issue. heard before a jury of twelve jurors. If any appearance were entered, the case was If the money were recovered, in the first instance, the attorney charged five shillings; and if he On County Courts. 7 were honest he handed over the money paid to him without any other deductions ; and if he made other deductions it was considered there was no available remedy to check the charges made. In Monmonthshire in 1837 there were 324 summonses issued under forty shillings, and 11 for sums between £3 and £20. Under the Act 37 Hen. VIIL., ch. 26., sec. 3, this County Court was held alternately at Newport and Monmouth. But the most remarkable of these Courts was that of Middlesex, held for the Hundred of Ossulston [23 Geo. III., ch. 33.] In 1887 there were 22,968 suits under forty shillings; 16,730 were heard ; the costs incurred were £4,869; the debts sued for, £22,051; the total amount paid into Court, £6,844; 907 persons were committed to gaol in the year; the Judge (Serjeant Hzaru) sat 113 days, and he received £3,452. [Parl. Paper, No. 338, II., 1839, p.22.] The compensation allowed to Mr D. D. Heath, the last Judge, is £2,414 ayear. [Parl. Paper, No. 100, 1862, p. 201.] These Courts were extinguished by the Act of 1846. This was one of the first great advantages gained under the new system. The second class of Local Courts were : Hunprep anD Manor Courts anp Courts Baron.—There were returns made in 1839 of 46 of these Courts. The business trans- acted in them was very light. Only one is deserving of notice— namely, that of Knaresborough. In 1837 there were 15 debtors imprisoned, by the order of this Court, and under the law in force at that time, they would have been imprisoned until their debts were paid, or until they were discharged under the Bankruptcy or Insolvent Debtors Act. The two gaols of Knaresborough—namely, the Castle Gaol and the Borough Gaol, where debtors were confined,—were two out of the seven franchise gaols, which were extinguished in the year 1858 [14th June, 21 and 22 Vict. ch. 22] under the same Act of Parliament which extinguished the Castle Gaol of Swansea. But the return of 1839 mentions this interesting or amusing fact—namely, that the attorneys had given notice that they would not practise in the Court under its scale of fees and that a new scale had been submitted to the approval of the Steward. The Court and Gaol are now at an end and the district is included in the 15th County Court Circuit. By the 12 and 13 Vic. [1849], ch. 101, sec. 14, the Court of Record of the Honour of Peveril was abolished, and compensation was granted to the Judge (£100 a year) and to the Prothonotary (£118 a year), &c. By the 15 and 16 Vic. [1852], ch. 54, sec. 11, the Courts of the Hundred of Offlow, Staffordshire, and of Hemlingford, Warwickshire, were closed, and compensations granted. [Finance Accounts, 1862, p. 56.] In the Law Times, June 14, 1845, the Hundred Courts of Clun and Purslow, Shrop- 8 On County Courts. shire, were complained of as dilatory and expensive in their proce- dure. and the officers as being of a low grade of life. . Other similar Courts may be considered to be extinguished. It was not the County Court Act of 1846, but the County Court Act of 1867, section 28, which practically closed all Hundred and Manor Courts, so far as related to the recovery of debts. It declared that no action should thenceforth be brought in any hundred or other inferior Court not being a Court of Record. Thus it was that another set of petty and mischievous Courts were abolished. There were 92 Boroucu Courts or Recorp which made returns in the year 1839. Of these 92 Borough Courts only 17 appear by the annual volume of Judicial Statistics to have any vitality at this time in civil actions. ‘There are 19 Courts of Record, exclusive of the County Courts, to which provisions of the Common Law Procedure Act have been extended by orders of Council. The chief of these Courts are the Bristol Tolzey Court, the Derby Borough Court, the Liverpool Court of Passage, the Newcastle-on-Tyne Court, the Preston Court of Pleas, the Salford Conrt of Record, and the Lord Mayor’s Court. All besides these seven are insignificant. The Court of the Lord Mayor is distinct from the City of London Court. The Judicature Commissioners propose the abolition of the. local and inferior Courts of Civil Jurisdiction. [Second Report, p. 18.) If they are to exist, either County Courts should act on the procedure of these Courts, or these Courts should be assimilated in their procedure to that of the County Courts; but neither plaintiffs nor defendants complain of the procedure or practice of County Courts, though they wish for a reduction of fees. The public complaint against all Courts of Law and against Parliamentary Committees on Local Bills is the amount of fees and costs. The reform everywhere demanded is the reduction of unnecessary costs in the Administration of the Law. Mr John Hollams, a Solicitor and a leader of the Commissioners, made certain suggestions, many of which are embodied in the Report, and he wrote thus [page 132] :—“ The evidence shows that the Local Courts are as a rule popular, and they do not in any instance appear to be encumbered with this system [of banking]. Another cause of their popularity appears to be that the plaintiff is allowed to take judgment by default.” In what manner is their popularity to be ascertained? In the County Courts plaintiffs themselves generally initiate the pro- ceedings. In other Courts attorneys generally do so. Will the com- parative number of defended cases be a test of popularity? Willa comparison of costs be a test ? Will the amounts sued for in the respective Courts be a test ? Will Bills of Costs and the opinions of a majority of suitors be the test? What is the test of “ popu- On County Courts. 9 larity,” for the statement of Mr Hollams evades verification, and especially because his name, without qualification, is signed to the oo pecomiminditg conditionally the abolition of these ‘ popular ” ourts ! Let us take from the Judicial Statistics of 1872 the summary of the business done in the local Courts of the chief of these county towns, and then, from the Parliamentary Paper relating to County Courts, take the business done in the County Courts of the same towns. Afterwards we may usefully abstract the evidence relating to certain Local Courts of Record. , The more important Local Courts of Record are : 1872. Plaints. Sued for. canes abore The Lord Mayor’s Court - - 15,811 £340, 863 8,347 Salford (includes Manchester) - 8,846 105,205 491 Liverpool Passage Court - - 2,411 69,011 841 Bristol Tolzey Court - - 627 20,262 181 Newcastle - - . 288 8,203 26 Derby - - - - 334 4,875 94 Preston - - “ - 445 1,923 12 The last column is included in the figures of the first ; the second column does not give the true amount of claims. The ordinary business of the County Courts in these towns in the year 1872 is shown as follows: Plaints, Sued for. a gal City of London Court - 14,257 £60,751 190 Manchester \ ‘ 14,157 36,720 175 Salford 10,683 20,622 80 Total Salford District 24,840 57,342 255 Liverpool 22,959 68,362 333 Bristol - - - - 13, 853 47,813 244 Newcastle 4,834 19,992 1382 Gateshead = : 2,033 5,100 25 Derby - - - - 6,864 14,120 65 Preston - - - - 2,679 8,665 52 Newcastle and Gateshead ought to have formed the district of one Court. In the County Courts, the Court fees being regulated by the amount claimed, an excess of demand above the true demand is rare, except when damages in cases of tort are claimed. Tue Lorp Mayor’s Court.—The amount of money for which a plaintiff can sue is unlimited. In cases of £5 and under, on contract, or £2 and under, én tort, a plaintiff gets no costs without the leave of the Judge, and under £10 a plaintiff gets only County Court costs unless the Judge certifies to give to him the ordinary costs of the Court. The Court has also jurisdiction in causes of sequestration, B 10 On County Courts. disfranchisement, defamation, debt or concessit sulvere, restitution of apprentice premiums, feme sole, merchants, &c. &c., and an Equity Jurisdiction. The Lord Mayor, Aldermen, and the Recorder or Common Serjeant are the Judges. The procedure includes formal pleading. There are eight days after service of the summons allowed for the Defendant to appear, four days to plead, and, when the cause is at issue, it may be entered for trial eight days before the next appointed Court day, making twenty days [p. 144] at least before judgment. Judgment, however, by default, may be obtained in a shorter time. Chamber business is ‘‘ Court business,” and therefore the Court is held every day. The Registrar sits in Chambers as “ the Court,” and transacts this business. Great pains have been taken to show that economy and low charges prevail in this Court, but no bills of costs of a Plaintiff and Defendant in a defended cause have been printed, and without such bills no satisfactory conclusion can be drawn respecting the charges of the Lord Mayor’s Court. This table of fees was given by Mr Brandon, the Registrar, for the instruction of the Commissioners : DEBT OF £9. County Court. Mayor's Court. Entering Plaint - 010 0 040 Hearing [judgment by default]- 018 0 0 3 6 Writ of Execution and Return- 013 6 0 3 6 216 011 0 The Mayor’s Court appears very economical in default cases as regards fees, but the following is taken from an actual “ precept” of execution sent into Glamorganshire, in August, 1873 : Ty tHe Mayor’s Court, Lonpon.—A. B. »v. C. D. Whereas on the day of » 1873, the above-named Plaintiff obtained judgment in this Court against the Defendant of £7 15s. 11d. for debt and £1 10s. 0d. for costs ; which judgment remains in full force and effect for the amount hereunder expressed. These are therefore to require and order you, in pursuance of the ‘Borough and Local Court of Record Act, 1872,” forthwith to make and le &e., &c. By the Court, W. Branpow, Registrar. me Amount of judgment £7 15 11 Costs - : - 110 0 5 Paid on account thereof i 0 4 55 Costs in the Mayor’s Court of this geen precept = - : 1 2 0 Costs of executing the same, On County Courts. II It was an undefended case, and the costs, therefore, without any costs of execution, were £212s. The County Court expenses in such a case would have been one shilling in the pound for the summons, (plus one shilling) for the entering and service of it, and if the debt were admitted at the hearing, one shilling in the pound more, or a total of seventeen shillings. The costs of the warrant of executiou depend on whether a debt is paid or not on the order being made. Attorneys’ costs are rarely allowed in non-contested cases, for professional service is not then needed. In open Court Barristers attending this Court have exclusive audience [Q. 284]. A Solicitor cannot be heard in open Court [Q. 287]. Even in cases amounting to less than £5 the Plaintiff is compelled to brief a member of the Bar in order to obtain a verdict on atrial. On the first day of sittings there are generally thirty Barristers. The Right Hon. the Recorder of London was examined by Mr Baron Bramwell: **Do you try actions of tort?—Yes.” ‘‘Then I suppose you have the same pleadings that we have?—Yes.” ‘You try actions on deeds and cove- nants?— Yes, we do, but not often.” | ‘* When they come upon you ?—Yes.”’ “This pleading of concessit solvere, if I remember rightly, says :—‘ Being indebted so much, agreed to pay it ?’—Yes.” ‘‘ Which is very much like the old indelitatus assumpsit 2—Yes ; we hold it will only include such cases.” ‘‘Is not that pleading a wholly defective and insufficient one for all purposes of stating what the Plaintiff's case is?—Yes ; there are always particulars—par- ticulars are always annexed.” ‘‘It is a pleading which practically means scarcely anything ; it gives no information ?—No, it gives none ; without par- ticulars, of course it would be wholly insufficient.” —‘‘It ties the Plaintiff up to a certain class of case, but otherwise it communicates no information to the Defendant ?- No.” ‘And is of no use?—None certainly: particulars would answer all the purpose as it appears to me.” ‘‘ Those pleadings are goodor bad ; if they are bad they ought to be abolished in your Court ?—Yes.” ‘‘If good, on account of their cheapness, they should be adopted in the Superior Courts ? Is there any reason against that ?—None whatever.” Many years ago Mr Bentham printed these words [ Works, v. 7, p. 279, ed. 1843]: ‘So utterly unfit is the initial document called ‘The Declaration’ in the opinion of the Judges themselves for any such purpose as that of informing the Defendant what claim it is that is made upon him, that a practice has grown up of compelling the Plaintiff to give in, together with the Declaration, another document called a ‘Bill of Particulars,’ which shall really specify what the Declaration pretends to specify : the nature of the demand. According to the Judges who had introduced this practice, the Declaration is waste paper; utterly useless with reference to the purpose for which it is pretended it is meant; productive only of a mass of expense to the Defendant; the Bill of Particulars really giving the information—all the information that is wanted. The question, why the Declaration is not abolished, is a question for 1 On County Courts. those who are capable of penetrating the mysteries of the judicial conscience.” But the writer has known the power to ask for par- ticulars abused, and a second order for further particulars respecting asum of £5, part of a large sum, was made by the late Baron Watson, when the mere costs of getting the order was alone sought for; it being admitted at the trial that all that related to the £5 was well known before the application was made. Chamber practice needs publicity. Mr Brandon was of opinion that cases under £10 in the Mayor’s Court should be heard without a jury and without pleadings [Q. 60]. There are pleadings and a jury in cases under £5 [Q. 44]. There was much earnestness shown by Mr Brandon in order to prove that the Lord Mayor’s Court is a cheaper one to resort to than the County Court. It is clear the professional remuneration is larger in the former than in the latter Courts. He takes an illustration of thirty debtors sued for £15 each, and then says: “*To recover the 30 debts as mentioned, the fees in the County Court would be £114 1s. 92, in the Mayor’s Court, £22 17s. 6d. ; and if subsequent judg- ment summons were required, the County Court fees in each case would be £1 15s. 9d., and in the Mayor’s Court, 9s. If it be admitted that wholesale houses, trustees, and others cannot enter their own plaints and appear to prove their own cases, but must employ an Attorney, what must an Attorney charge against the clients for issuing these plaints? Whatever it may be it falls upon the clients as the price or cost of recovering their debts, and what remuneration should an Attorney charge for providing this £114 1s. 9d. paid in fees ? “Tf the debts turn out bad debts, with a small payment for fees, the Attorney can have consideration for his client, but with heavy fees a large business of the like nature might ruin an Attorney.” But it is not to be admitted that in a County Court an Attorney need be employed. Any foreman of intelligence can in a County Court obtain judgment in one day against many debtors even in defended cases. It is not so in the Lord Mayor’s Court. If thirty debtors owed £15 each (the case put), the fees in the County Court would be one shilling in the pound, and one single shilling extra; two shillings on the hearing if the debt is not admitted ; and one shilling in the pound if admitted. The costs of the County Courts in each case would then be 31s. in case of admissions, and 46 shillings if there were a hearing; and these figures multiplied by thirty would make the expenses—in case all the 30 debtors admitted their debts—of 461. 10s., or 10 per cent., and, if the cases were heard, of 691., or 15 per cent. But if £2 12s. are the costs, as in the above writ for the Lord Mayor’s Court on a judgment for £7 15s. 11d., the costs would be £45 (£1 10s. in each case) to obtain the judgment, and £1 2s. in each case for the precept to levy (£33), making for costs in the thirty cases £78—exclusive of the costs of a levy. The costs in both Courts are too much. Five per cent., or the double hearing fee in the County Courts, On County Courts. 19 should be abolished; and there is this in favour of abolishing it, namely, that the suitors would really receive the benefit of the reduction. The Attorneys’ charges in the Lord Mayor’s Court would not probably be reduced. Debt collecting is not the necessary business of attorneys, and yet the services in a Court of law of unprofessional debt collectors are objectionable. The County Court enables every creditor to collect his own debts himself, or by persons in his service ; and this ought to be the general practice. It is easy to transact this business in the County Courts, and no tradesman should experience any difficulty in collecting, through his own domestic agency, any debts due to him, if his business has been honestly transacted. The law guiding him in undisputed cases is mere A BC in Courts which are open and where pleadings are not required. 66. (Mr WuirmoreE addressing Mr Branpon). I take it, the fact is you cannot have pleading without the ig ee of a Solicitor ; a suitor going to the Mayor’s Court must employ a Solicitor ?—He may do it himself if he is aware of the rules of practice. 67. How can he draw his pleas?—Many do draw their pleas. 68. (Mr Hotuams). I suppose it sometimes happens in the Mayor’s Court that the people do not raise the real point by their pleadings and come to an untimely end ?—We have some very grotesque and very eccentric pleadings sometimes. Of course there are applications at Chambers to amend and strike out pleas: they are very common. 69. (CHAIRMAN.) I suppose it does not answer for a suitor to draw his own pleadings ?— The chunces are greatly against him, The success of the procedure of the City of London Court proves that the procedure in the Lord Mayor’s Court ought to be the same. Mr Brandon was asked [Q. 309], “Have you compared your scale with the County Court scale of remuneration to Attorneys: practically it is about four times what it would be in the County Court ?—It is very difficult to say what is the remuneration of the Attorney.” “Take for example an action of £20: when a case is fairly (?) tried what would be a fair estimate of trying an action: from £15 to £20 ?—Yes, I think so.” [Q. 310]. The Commis- sioners should not have been satisfied with this answer, and should have asked for actual bills of charges. Mr Brandon himself taxes bills at a very much lower rate than the Common Law Courts. [Q. 315]. He was asked why there should be two City Courts. He replied, “ that the feeling seems to be against the County Court style. There is a prejudice against the County Court. ees (?) (not costs) of County Courts ‘enormous; services by officers of County Courts; mixture of all kinds and descriptions of causes (?), and payment of money into Court instead of to switors [agents and attorneys ?]”’ [Q. 83]. These are the arguments against County Courts, and the allowance to Solicitors is thoroughly inadequate. He is aware that there is no fee on the service of the processes of the County Courts, but to make these Courts pay—“‘ the expenses of 14 On County Courts. the Court would be cheapened if suitors served the process in their own cases”? [98]. But what would be the extra cost to Plaintiffs or Defendants ? They would themselves still have to pay these costs as part of their charges when asking assistance in the adminis- tration of the law. ‘The public,” said Mr Brandon, *‘always seem to have more confidence when a case is determined by a Judge than when by a Registrar [110]. No money is received in Court on judgments, except where there is fi. ja.” “ Attorneys and Attorneys’ Clerks have always got sneers against County Courts, but I do not see why they ought to have them” [152]. “ Let a Plaintiff seek his own tribunal; if he is satisfied, and the Defendant is satisfied, I do not see why the case should not be tried there, whatever the amount sued for” [16] ]. It appears by the “ Judical Statistics” that in 1860 there were 8,468 actions entered in the Lord Mayor’s Court, and the sum of £76,808 was sued for. The classified number of actions was: Under £5 - 28 Under £20 1,452 Under £10 - 1,315 £20 and above - 673 There were 224 orders to stay proceedings, 23 writs of cer- tiorari, and 966 judgment summonses. The fees, exclusive of costs, amounted to £2,127. In the year 1866 the number of actions was 4,109 «1867 . - 6, 084 1868 - 10,086 . 1872 es . 15,811 Amount of money sued for: 1860 - - £76,808 1862 - 90,519 1866 - - . - 184, 877 1867 - - : - - - 139, 485 1868 - Sl - - - 228,612 1872 - = 3402863 The fees, exclusive of costs, on all proceedings in the Lord Mayor’s Court [Parl. Paper, No. 310,29 May, 1868; Jud. Stat., 1873, page xviii.| were: 1860 - - - - - - £2,127 1862 - = 2,369 1864 - - - 3,956 1865 - - 3,855 1866 - - 4,446 1867 - - - 5,362 1870 - 7,904 1871 - - - - - 8,419 1872 - - 8,597 and in 1869 the Corporation had a net profit of £4,081 beyond the maintenance of the Courts; surely a most censurable source of On County Courts. 15 income. It was paid into. the general fund of the Corporation of the City. Mr Moffat remarked that the number of cases tried (P) in the Court was 2,793 in 1858, and 12,983 in 1869. The explanation of the increase was ascribed to “confidence in and the utility of the Court.” It was not asked what effect the act of 1867 had in caus- ing this change. That Act has reduced the number of plaints in the Superior Courts in 1867, which were in that year 127,221, to 63,926 in the year 1872. The Westminster rookery was terribly disturbed in 1867, and the birds took flight to Local Courts of Record in preference to County Courts. This letter appeared in the Law Times, June 22, 1872, p. 143: Sir, —Allow me to bear testimony to the oppressive action of the Lord Mayor’s Court. A tradesman in this town, eighty miles from London, sues a customer, also resident here, for goods supplied. Neither party had been in London, but jurisdiction is obtainel thus: The Plaintiff instructs an Accountant, who calls himself a Trade Protection Society, and has an office in the City. This Accountant writes to the debtor, who, owing a part of the demand, and to save the proceedings which are threatened, writes in return, offering to pay by instalments. An affidavit is made, and thereupon issues a summons for some 30s. or £2 more than the debt. _ I instruct agents to plead to the jurisdiction, but learn that the letter sent by the debtor gives jurisdiction, and the expense of defending is probably more than the amount in difference. My client, the debtor, being a poor man, I submit. J[ receive more summonses in this Court for service than I do writs in the Superior Courts, and I generally learn that juris- diction is obtained through the debtor having written a letter admitting the debt to some extent [see Law Times, Feb. 17, 1872, p. 297]. In hardly any cuse does the Plaintiff reside or carry on business in the City af London, June, 1872. Nore.—Some hard words of the original are omitted. The jurisdiction of the Court may depend on “an account stated,’ said Mr Brandon [Q. 126]. If the Defendant calls on the Attorney and says: “I admit I owe the amount, but I cannot pay it just yet,” then the Aitorney’s Clerk thinks he is justified in making an affidavit of “an account stated’’ within the jurisdiction. If the Defendant pleads to the jurisdiction, it is tried as an issne of fact [175] Baker v. Clark [L.R.C.P., 121]. In a County Court the Judge summarily decides the question of jurisdic- tion, and this is the proper course. It is, however, an odd expres- sion of Mr Brandon relating to the matter of an oath—that the Clerk acts on what “he thinks he is justified in swearing,” dependent as this is on a point of law which the Judge and officers of the Court must know whether it is correct or not, without leaving it to the deponent to argue on the moral and legal justification of his deposition. The Commissioners present, however, did not remark on it, and it was for them also to have reflected and to have spoken on it. 16 On County Courts. As the Lord Mayor's Court has unlimited jurisdiction in the amount of money sued for, it may, under the Local and Borough Courts of Record Act, 1872, and the Order in Council of June 26, 1873, sit as a Nisi Priws Court in London all the year round, especially as suitors ‘‘to a very large extent prefer this Court to the Superior Courts” [3879], and “the business is done in it more cheaply and quickly than in the Superior Courts ”’ [378]. If this Court and the City of London Court are needed in the City of London itis right they should exist, but certainly there is not the slightest necessity to require that the procedure in them should differ. Mr Brandon, the Registrar of the Lord Mayor’s Court, favoured the Commissioners with a solemn prophecy, namely: “Many years’ experience with the practice and machinery of Local Courts assures me that the County Courts, as at present constituted, will never obtain the confidence of the public, and if business is attempted to be pressed, without caution, upon the Courts, as they at present exist, there will be such a reaction that they will be left as mere Courts of Requests.” It is not among the officials and practitioners of the Lord Mayor’s Court that the fulfilment of such asad expectation will be mourned. Must the Lord Mayor’s Conrt itself be maintained by heavy costs and needless professional charges P Will public interests be always forgotten in the presence of sup- plicants for protection from plunder in Courts of Law ? Tue Ciry or Lonpon Court is governed by the Act of 1852 [15 Vic., 1852], and by the Act of 1867, sec. 35, it is declared to be a Court of Record. In the year 1871 the sum of £53,000 was sued for in this Court, and in 1872 the sum of £60,751. There were also 151 Admiralty and 9 Equity cases; 190 cases above £20, and 14,067 cases under £20 in the year 1872. The practice and extent of its jurisdiction are similar to those of the County Courts. Mr Kerr, the Judge, considers as many, if not all the County Court Judges do, that except by consent, or in the clearest cases of neces- sity, payments of debts by instalments are not to be ordered in actions for dishonoured cheques, bills of exchange, promissory notes, or commercial debts, or where goods have been sold wholesale in order to be retailed. The instalment orders are generally made in cases where the sources of the Defendant’s maintenance depend on wages. Mr Kettle, J.C.C., expresses similar opinions. He says: My practice is never to order a trade debt to be paid by instalments unless the Plaintiff requests me so to order it. When it is a trade debt, and the credit has expired, I always order it to be paid in 14 days unless the Plaintiff himself desires to have it paid by instalments. Ido not think the County Courts were ever intended to tie up a wholesale dealer’s capital amongst a lot of shopkeepers or to enable a shopkeeper to trade upon credit and to compete with his neigh- On County Courts. 17 bour, who was paying cash. Mr Skinner, J.C.C., finding that the system worked so well, has adopted it in his Court, and it works in his circuit as well asin mine. When debts are contracted for the necessaries of life for household consumption, then I order them to be paid by instalments, because I know that the bargain or rather the tacit understanding between the parties when the debt was contracted was that it might be paid by instalments, and I feel that I am only carrying out that contract in its spirit. But where the credit has expired, and the miller is dealing with the baker, the brewer with the publican, or the wholesale grocer with the little huckster, I always order the money to be paid at once, and I find that it answers very well indeed. If there be a judgment summons for not paying the money under such an order, I do not commit defen- dant to prison, until I have inquired as to their means of paying, and at that stage of the proceedings it often happens that I have to reduce a trade debt to a payment by instalments of such an amount that the man could pay if he had an honest intention. —(P. 321.) Mr Fairfield was asked [p. 196, Q. 107]-respecting the adminis- tration of Admiralty law in this City of London Court : Do you object to the Court having this jurisdiction at all?—No, I do not object to it, because in the decisions I have had—and 1 think I have had the largest number—I have never had an appeal in any one case. I think the Judge, (Mr Kerr), certainly tries the cases with great ability. He appears to be well up in various points of shipping, and as to the different parts of a ship. It is something wonderful, considering how he has got all those points up ; he seems readily to understand them without’ its having to be interpreted to him. The other day 1 was specially retained to go to Yarmouth. We had to stop to explain to the Judge the exact portion of the ship or rigging which was meant ; but Mr Commissioner Kerr seems to have got it up remarkably well. Mr Kerr stated [1,854] that “the prejudice which was got up against the County Courts is dying out. When he was called to the bar they had just been established, and it was a common thing then in Westminster Hall to hear them sneered at even by the Judges; Counsel and, of course, Attorneys followed the example and circu- lated stale inventions, which were witty, as they thought, about County Court law and County Court justice. But County Courts have gone on in their quiet ways, and now when anything is really to be done, it is shifted on to the County Courts.” In the case of Cawley v. Purnell, 20 L. J. R., 197; 12 C. B., 291 [21 June, 1851] ; 17 L. T. R., 201, which was the first appeal from a County Court heard in the Common Pleas, Maule, J., said: ‘‘We think it con- venient not to give the reasons for our judgment.” This proceeding occasioned the publication of a leading article in The Times, severely censuring the Judges, which had the effect of stopping the course announced. The Judges discovered also that Lord Brougham had the power and the disposition to compel them to perform their duty in County Court appeals. In another case, Maule, J., remarked “that they did not want to know what the County Court Judge said.” In a late case [The Argos, L. R. 4, Adm., 25] the Judge of the Admiralty Court complained that “the Judge of the inferior c 18 On County Courts. Court had given to him no assistance, having considered in that case that it was unnecessary to state the reasons of his judgment, which he could have done with ability, and that he had taken a very mis- taken view of the duty of a Judge of a Court of first instance.” Probably, if the reasons of the County Court Judge, which are con- stantly well considered and printed, were proposed to be read on appeal, they would be rejected in the Common Law Courts as an unauthorised addition to the case which the parties may have settled. The reception of the earliest cases from the County Courts by the Courts of Common Pleas and of the Exchequer might have led it to be inferred that no applications had been heard of in Westminster Hall for new trials, and that no Judge of the superior Court had ever been overruled in any opinion which he had expressed. Baron Alderson and Chief Justice Jervis were especially hostile to the new Courts. Among the earliest of the Judges who acted courteously towards the Judges of the County Courts was Baron Martin. Tar Satrorp Hunprep Court or Recorp. — This Court has obtained great notoriety. It has a more limited jurisdiction than a County Court. In the words of a joint communication to the Com- missioners from its Judges, Mr West, Q.C. and M.P., and Mr Kay [page 149], “it mnyoys all the modern reform effected in the pro- cedure and practice of the Superior Courts.” Whatever may be the enjoyment of the Court, the causes of it can hardly please those who ay the costs of what affords much satisfaction to its Judges. The Act of the 31 and 82 Vict., ch. 130, which received the Royal Assent July 3, 1868, regulates the procedure and practice of the Court. It was passed in the last Session of the Parliament which first met in February, 1866. The Government should have earnestly opposed it. There was a division against the Bill on the motion of Mr Cheetham, and the House divided 145 to 42. Mr Gladstone, Mr Bruce, Hon. G. Denman, and Messrs Bazley (Manchester), Horsfall (Liverpool), &c., were in the majority; and Messrs Clay (Hull), Cheetham (Sal- ford), Childers (Pontefract), Goschen (London), Gorst (Cambridge), Bouverie, and Sir F. Goldsmid were in the minority. Sir F. Gold- smid’s opinion is always adverse to law jobs. The extent of the jurisdiction of the Salford Court is similar to and in some matters less than that of the County Courts, one of which exists at Man- chester. It has authority to try personal actions if the debt or damages sued for do not exceed £50 and if the cause of action, which means the whole cause of action, arises within the Hundred, and actions of ejectment between landlord and tenant. The County Court of Manchester, as well as other such Courts, have jurisdiction in the district of which the cause of action wholly or in part arose, and can try actions of ejectment, not morely between landlord and On County Courts. 1g tenant, but actions in which title to hereditaments is in question. [C. C. A., 1867, sec. 1, &c.] But this Salford Act contains this curious clause [sec. 7], “No defendant shall be permitted to object to the jurisdiction of the Court otherwise than by special plea, and if want of jurisdiction is not stated, the Court has jurisdiction for all purposes.” Who can draw and plead a special plea? Is this necessity to employ lawyers one of the public enjoyments of the inhabitants of Salford Hundred ? In the County Courts the Judges know when they have no jurisdiction and say so without cost to any person. The Act of 1868 recites that one of the many Old Hundred, or Wapentake Courts, existed at Salford, and that its jurisdiction had been extended by an Act of the 9 and 10 Vict., ch. 126; that a charter of incorporation of the Mayor, Aldermen, and Burgesses of Manchester had been granted on the 28th of October, 1838, with power to hold a Court of Record for the trial of civil actions before the Mayor; that on the 29th of March, 1853, letters patent were issued, incorporating the Mayor, Aldermen, and citizens of the City of Manchester ; that by an Act of the 17th and 18th Vict. (1854) ch. 84, the jurisdiction of the Court of Record was extended, and that it was advisable to amalgamate the Courts of the Hundred of Salford and of Manchester. The Court which was thus established in 1868 is a mere opposition Court to the County Court. Section 11 recites that the Earl of Sefton was entitled to receive one third part, for his own use, of the net receipt of fees paid on account of the business of the Salford Court, and section 35 provides that the Earl of Sefton shall receive one third part of the fees arising from the business of the Court within the Hundred, other than the city, the amount in any year not being less than £210 [Sec. 35]. By this provision much “enjoyment” was secured to the Karl of Sefton out of the pockets of suitors through the expected increase of business outside of the city of Manchester. Messrs Kay and West in their paper, dated January 24, 1870 [p. 148], say that “ plaintiffs in County Courts complain that they are greatly harassed by the mode in which, when they succeed in obtaining judgment in a County Court, they are PREVENTED recovering the amount adjudged, except by small instalments spread over a long period of time, and subject to the uncertain and varying cirewmstances of the debtor.” The Judges of the Court seem to have forgotten the provisions of their own Act of 1868, section 42, which enacts “ that the Regis- trar, at any time before declaration filed, may stay proceedings on con- fession of the debt by a defendant, and his undertaking to pay at any period of time, not exceeding three months in the whole, and by instal- ments, or otherwise, as the Registrar may think proper under the par- 20 On County Courts. ticular circumstances of the case. In case of default in such payments, final judgment is to be entered, and execution for whole debt and costs unpaid may issue.” : As for the alleged complaints of suitors that in the County Courts they get orders to pay by instalments, they are the complaints of oppressive Attorneys, and not of the suitors. The plaintiffs usually in the County Courts suggest the instalments: they are asked to do so. If the defendant can pay the whole debt at once the order is to this effect. But if there be a needy Attorney employed against a poor debtor, and the order were made to pay the whole sum at once, the Attorney, as a rule, would take out execution for the whole sum. A levy on the goods of the defendant would pay the amount of the Attorney’s bill due to the Attorney from the plaintiff ; the household of a defendant would immediately be broken up, and he would probably be ruined. The day when the plaintiff would be paid even anything would be exceedingly remote, and he would be paid his debt, in the words of a Bristol official, “‘if he could get it.” But what prevents suitors in County Courts for obtaining an order for the immediate payment to them of judgment debts? Not the Court, nor the form of procedure of the County Court. The prevention is the absence of the means to pay the whole amount at once on the part of debtors, and the cruel process of the law in the Courts where this consideration is disregarded is avoided. When the judgment is above £20, the Judge of the County Court is compelled to order payment forthwith or within fourteen days, unless the plaintif asks for an order on the defendant to pay by instalments [19 and 20 Vic., ch. 108, sec. 45], which is very frequently the case. The following replies were made to the Judicature Commis- sioners : 5207. (CHAIRMAN.) Some objection has been made to the power which the County Courts have of ordering payment by instalments, but I take it you probably both concur in thinking that it is an useful power ; the only question is, whether it may not sometimes be exercised superfluously? Mr HERsert, J.C.C.—I always consider that that power is given for the benefit of the plaintiff who cannot get his money any other way. Mr McTaceart, J.C.C.—The persons who do object, and who consequently prefer the other local Courts, are debt collectors and attorneys who act in that capacity, to whom it is a great trouble to attend from time to time ; but as to the a themselves, I believe they do not object in the least to instalments as a rule, 3067. Over how long a time would you spread the payment? Mr MarsHaALL —Over any number of years. What we look to are the ‘‘ means and the ability” of the defendant. A defendant comes up, and admits, we will say, a debt of £10, and satisfies the registrar that he is on short time, that he has got a wife who is an invalid, and eight children ; and that he is not able to pay more than 2s. amonth ; I make an order for 2s. a month because the man cannot pay more than that. If it were £100 we should do the same. It would be the fault of the plaintiff to w great extent. LT think it would be a most inhuman On County Courts. at thing to make the instalments such that the man could not pay them, and then to put the plaintiff into the position of sending a bailiff, and breaking up the man’s home, and sending him, his wife and children, to the workhouse. It is a merciful provision of the County Court Act, 1846, that a Judge may anticipate default in the payment even of instalments ordered, and limit the amount for which an execution on the goods may be levied [9 and 10 Vic., ch. 95., sec. 95]. By section 105 also, of the same Act, if from sickness or other sufficient cause the defendant is unable to pay the debt, or damages, or instalments ordered, the Judge may suspend any judgment, order, or execution, on terms, from time to time. Mercy may be thus shown to poor people when overwhelmed with or suffering from sickness, accident, or poverty. Mr Marshall, Registrar of Leeds, suggests that the power to order payment by instalments shall be extended to these cases : Under Stat. 3, 4 Vic. c. 110 (made perpetual by 26, 27 Vic. c. 56), Justices in Petty Sessions have a concurrent jurisdiction with County Courts for the enforcement of payment of loans granted by Loan Societies. Under this Act the Justices have no power to order payment by instalments, or to postpone the payments, but must make an order for immediate payment (PARKER v. Boveutey, 3 B. & S., p. 43). This jurisdiction is anomalous and oppressive. It was given long before the institution of the County Courts and should now be taken away. The Salford Act provides [s. 18] that the Judge shall preside at the sittings of the Court, and shall have all the powers which are, or which may at any time hereafter, under any statute or otherwise, be possessed or exerciseable by a Superior Court or a Judge thereof. The sittings for the trials of issues of law and of fact are to be holden six times a year at least, and juries of twelve hear every contested case. Section 20, which provides for the transaction of business by the Judge when out of the Hundred, is similar to that numbered 2 in the Schedule of the Borough and Local Courts of Record Act, 1872 [ch. 86]. Any writ, order, summons, or process may be served in part of England and Wales [s. 40]. Sections 6, 7, 9, and 11 of the Act of 1872 are similar to sections 61, 62, 88, and 90 of the Salford Act. Warrants of commitment of the Salford Court may be executed anywhere in England and Wales [s. 137], and the Salford Act contains elaborate provisions respecting pleadings. When a verdict, in a case which could be tried in a County Court, is given for a less sum than £10, County Court costs are to be given unless the Judge certifies to the contrary. Defendants might have been taken in execution [s. 184] which they never could have been under the judgment of a County Court, even before the Salford Act of 1868 was passed. The reader must bear in mind that all the elaborate proceedings of this Court chiefly relate to money demands and damages which 22 On County Courts. do not exceed £50 [s. 6]. After the passing of the County Court Act, 1867, cases under £10 ought not to have been brought in such Local Courts, though if cases under £10 were excluded, almost all such Courts would have little or nothing to do. What, then, has been the effect of establishing an elaborate and expensive procedure with higher costs than those of the County Courts ? In 1853, before the Act of the 17 and 18 Vic., ch. 84 (Local Act) was passed, the business of the County Courts of Manchester and Salford was: Plaints. Sued for. GaniEs aore Juries. Manchester 21,200 £56, 088 390 3 Salford - - 5,019 33,408 250 0 26,219 89, 496 640 3 In 1872 the business was : Plaints. Sued for. Causes above Juries. Manchester - 14,082 £36,720 175 13 Salford - - 10,603 20,622 80 3 24,685 57,342 255 16 How powerless in argument on this subject should we not be, but for the result of the persistent advocacy by Lord Brougham of the publication of Judicial Statistics? The falling off in cases above £20 shows the effect of the preference given to increased costs. In 1871 there were 8,252 writs issued from the Salford Court ; 2,947 judgments by default [5,000 demands being properly settled on the service of the writs], and there were only 116 causes tried—or about twenty at each of the six sittings in the year. Of the 116 cases tried, there were eighty-six verdicts for plaintiffs and twenty-six for defendants. Writs. Sued for. Judgments for. Cannes sboRe w7l- 8,252 £99,746 £36,313 465 1872 - - - 8,846 105,205 36,655 49] The amount of costs, exclusive of fees, in 1872, was £9,166, and of fees, £3,265. Judgments by default, itis said, “can be obtained without delay and at less expense than in a County Court: there are cight days given for appearance to the writ, and, at the expiration of six days from the service, execution may issue.” It so happens that in August, 1873, three writs for service were sent from Salford to Glamorganshire : On County Courts. 23 (1) for £19 9 10 (2)£15 12 7 (8) £3.11 7 Costs if paid in four days - - 17 0 110 0 016 2 If final judgment, but subject to taxation - 2 2 2 2 2 0 14 2 Costs 89 2 312 0 “20 4 Costs inthe County Court to final judgment would have been : No 1, £3; No. 2, £2 9s., and No. 3 would have been thirteen shillings and sixpence. The words “subject to taxation” mean nothing in the way of reduction of costs to persons living 100 miles, or many miles less from Manchester. It might be inferred that the Salford Court was a paradise for debt collectors. ‘‘ Suitors,” said Sir John Heron, “go very unwillingly to the County Courtas it at present exists. They can scarcely be induced to go there.” [Q.1,590]. “Might not all be set right,” said Baron Bramwell, who believed the statement, “ by letting the County Court do that which the Local Court does.” [Q. 1,592.] ‘It must be done,” replied Sir J. Heron, by altering the County Cowrt entirely, and making the County Court what the Court of Record is. I can see no other way in which it can be done, because if the business is to be part of, as it were, the Superior Courts, the Superior Courts will get overwhelmed in one way or other with the work.’ This is somewhat obscure, but what is distinct is that there were 24,645 plaints in the Manchester and Salford County Courts in 1872, and 255 cases above £20 and £57,342 was sued for. Suitors apparently must have had very sufficient reasons and no unwillingness in going to these Courts in 1872. Probably the word “ suitors ” was used in error by Sir John Heron. By a Parliamentary Return, it appears [No. 477, 18 August, 1871] that more cases were actually heard and disposed of by the Judge of the County Court at Manchester in 1870, in nearly every month of that year than in the Salford Court during the whole year, and that the Judge [Mr J. A. Russell, Q.C.] would have had sufficient time to have heard all the contested cases of the year which were tried in the Salford Court, namely, 123 [Jud. Statistics, p. 17, 1870]. In 1872 there were 124 cases tried. In the Salford Hundred Court of Record, says Mr Yatzs, J.C.C. : the pro- cedure and scale of costs are alnost, if not altogether, identical with those of the Courts above. The necessary result is that whenever the discretion rests with the attorney, the proceeding is in the Record Court. It is said that the costs of recovering a debt are higher tlian the County Court. This is easily explained. .In the Record Court, as I am informed, full 90 per cent. of the cases do not go beyond service of the writ. In the County Court almost every summons is followed up by judgment. The reason is that in the former Court a prudent man, where the amount is not large, will submit to imposition rather than incur a heavy bill to his own attorney, whatever may be the result of a 24 On County Courts. trial, In the County Court there are no necessary costs, except the Court. fees ; and where the demand is under £20, the 19 & 20 Vict. c. 108, s. 36, protects a party against his own attorney. The reasons given to the Commissions, why the Salford Local Court should be preferred to the County Court, or at least for not subjecting it to the rules of practice of the County Courts, are of the most idle and silly character. The Acts of Parliament for the establishment of the Salford and Manchester Courts of Record, and the Act of 1868 for combining them, ought never to have been passed. They have imposed large charges on the public for the sole benefit of lawyers. 5 But what do honourable attorneys say of these Courts? Mr Coppock, of Stockport, said [p. 90]: ‘There is a recently-esta- blished Court of Record in Manchester. It has jurisdiction over the Hundred of Salford. It is a miniature Superior Court. To try an action there will cost from £30 to £50; whereas it would be tried in the County Court for about £10, counsel included. It does not affect the County Court much, but all such Courts are used as oppressive engines by low attorneys.”’—“ The power of a plaintiff to bring a defendant before a Court of Record (not a County Court) for a cause which could be tried in a County Court, is a most oppressive and improper power.” [Evidence, p. 90.]—‘‘ Nottingham traders are harassed by proceedings in the local Courts of Liverpool, Man- chester, and London, in which the expense greatly exceeds that of the County Courts.” —“ The existence of this [Salford] Court is one of the oddities of legislation, and of recent legislation under, it was presumed, local influence.” [Evidence of Mr Green, J.C.C., p. 13.] The Judicature Commissioners do not notice the injustice of charging the law taxation on suitors of this Court, with an annual payment of at least £200 a-year to Lord Sefton. [Evidence, p. 150.] The Act of the 385th and 36th Vict., ch. 86, 1872, which will be presently mentioned, seems to have been passed under the Salford Court of Record influence, for the 4th section provides that two or more Courts may be held at the same time, and this Salford Court is the only Local Court of Record which has two Judges. It is perfectly clear that the Salford Hundred Court of Record should be abolished without delay, for the Act which established it has simply authorised the plundering of the inhabitants of the Hundred of Salford, for the profit of lawyers, and, apparently, for Le benefit of the Earl of Sefton and not for the benefit of the public. . Tue Court or Passage, Liverroot, was a favourite Court among local lawyers. It has jurisdiction in all personal actions to any amount [p. 146.] Under the 31st and 82nd Vict., ch. 71, and the 32nd and On County Courts. as 38rd Vict., ch. 51, it has Admiralty jurisdiction, as well as the Liverpool County Court. The same system of pleadings as in the Superior Courts prevails and this was represented to be a very great advantage [1,317.] As the new Judicature Act [36th and 37th Vict., ch. 66, 5th of August, 1873], has changed the system of pleading, its alleged merits have been condemned. The scale of costs is much higher than in the County Courts [p. 10,] but misleading tables of comparison were presented to the Commissioners [pp. 235-236.] The Assessor or Judge sits four times in the year. In 1871 there were 1,651 plaints entered, and in 1872 there were 1,570. There were only 149 cases tried in 1871, and only 180 in 1872; itis therefore very evident that they might have been tried in the County Court. Every party must appear in Court in person, or by Counsel, and not by an Attorney, and there is a jury in every contested case [p. 217.] The Registrar [1,235] stated that the “ profession ” and trading com- munity have a general dislike to the County Court. As respects the trading community we have this fact, namely, that in 1872 they sued in the County Court of Liverpool for £68,362. This isa remarkably large amount of money to be sued for in a Court disliked by “ the profession and the trading community.” For sums under £10 only County Court costs are allowed. In this Passage Court in 1871 there were 1,651 plaints entered, and £62,837 sued for, being £5,525 less than was sued for in the County Courts in that year. The evidence of Mr Fleet, the Registrar, was given in March, 1870, and in that year £70,453 was sued for in the Passage Court, and £75,601 in the County Courts. The dislike to the County Court is not on the side of the trading community. It is evident this Court might be abolished or its procedure assimilated to that of the County Court. It would not be popular if the costs were not satisfactory to those who are called “the profession ” [1,223]. That this is the fact is shown in a somewhat amusing manner. The officers of the Court of Passage would represent from tables which they produced that their great desire is the economical administration of the law. Indeed, professional virtue was thus vindicated. The Registrar of the Vourt of Passage was asked [1,286] ‘‘ Independently of the question of Court fees, do you find that attorneys recommend clients to commence actions in those Courts where the costs allowed are on a higher scale?” The reply was magnanimous—‘‘There is one class who would, and another who would not, I am quite sure, be guilty of it.” But it so happens that by an Act passed in the year 1869 [32 and 33 Vict. ch. 37] called ‘The Common Pleas of Lancaster Prothonotaries Act,” Liverpool attorneys can now issue process in cases to be tried at the Assizes without employing a London agent. By the Orders of October 23, 1869, under that Act, costs of summons for sums under D 26 On County Courts. £20 may be endorsed for service £2 14s., and if above £20 the endorsement may be for £3 8s. And what do the Court of Passage gentlemen say? Costs were represented to cause no preference of the Passage Court above the County Court. But between them and the Lancaster Court of Common Pleas they make this statement. “ By a Rule, the costs in actions exceeding £20, are to be the same as the Superior Courts of Westminster. The effect of this will be that many cases exceeding £20, even by one shilling, will be brought in the Court [Lancaster C. of C. P.] for the sake of the larger costs.” What class of practitioners are those who would not disregard the temptation? The prediction was not wrong. The following table shows the diminution of the amount of money sued for in the Passage Court and of cases above £20 since the year 1869. It is not the superiority of Courts but Cosrs that was sought after. Sued for in the Plaints Liverpool Causes under Above Judgements Couuty above £20. £20. Sued for. or. Court. £20, 1866 2,061 2,036 £210,037 £84,415 £57,359 231 1867 2,013 1,622 148,481 63,731 1868 1,424 1,877 146,748 47,737 74,750 287 1869 1,426 1,796 139, 225 51,434 75,544 455 1870 1,088 1,555 70,453 27,636 75,601 332 1871 1,651 756 62, 837 29,035 74,295 856 1872 1,570 841 69,011 25,322 68,362 333 Has the “ profession ” contracted a dislike to the Passage Court since 1869 P In the year 1872, judgments were given in the Liverpool County Court for £32,977, as against £25,322 in the Passage Court; and the amount sued for in the County Court and in the Passage Court was about the same! Why are two Local Courts with different procedure needed ?P The Touzry Court ar Bristor [tol: ¢ributum.] The jurisdiction extends to all matters, and to an unlimited amount, provided the cause of action arises within the jurisdiction. There are similar pleadings as in the Superior Courts, and in nineteen cases out of twenty, an Attorney is employed [5,704]. In 1868, plaints were entered for £11,582, but the judgments were for £2,532. The larger sum is a nominal amount. It does not represent the amount of the debt sued for. If £11 were sued for, £19 would be on the pleadings [5,686]. This caused no surprise, and Mr Justice Quain explained the difference to be, “ pleaders’ damages in the declaration ” [5,687]. The declaration expresses falsehood and not the truth; and this is done knowingly and apparently to increase costs [5,686]. This legal mendacity-licence, and dishonesty were strongly condemned by Ben- On County Courts. 27 tham [ Works, vol. 7, page 267, and vol. 9, page 491], and it may some day be condemned by Judges and the legislature. A plaintiff knows the amount of adebt due to him, and to demand more through the agency of a mendacious confederate is dishonest. The plaintiff collects the debt, “ if he can get it” [5,691]; and if not, an execution is given to the Attorney [5,699]. It is not worth while, according to the statement of the Registrar, for Attorneys to go into the County Court the remuneration being small and “they do not like it.” The practice of the Tolzey Court is more like that of the Superior Courts, “which Attorneys much prefer.” The Court sits five times a year, and there are generally about five cases in a quarter for trial. Cases are tried by a jury of twelve. Certioraries are frequent. In an undefended action, judgment can be obtained in about three weeks from the service of the writ. The costs, said Mr Wansey, the Registrar [5,674], in undefended actions, he believed to be much lower than in the County Court. In 1872, the sum of £47,813 was bond fide sued for, and judgment given for £22,966 in the Bristol County Court, and Mr E. Harley says [page 113] ‘‘ that the costs of the Tolzey Court are much higher than in the County Court. The difference between £47,813 and £22,966 was, no doubt, paid or settled for between the parties. Complaints made by suitors in the County Courts, that they receive their money by instalments, it is said, are avoided in the Tolzey Court ;” but orders for payment by instalments are frequently made [5,697]. The relative costs of action in the two Courts are given [page 157]. An undefended action for £5 in the Tolzey Court is set down at £1 16s. 0d., and in the County Court at £2 1s. 6d. The County Court costs would be one shilling in the pound on entering and issuing the summons, and having wt served, and if the claim were admitted, it would be one shilling more in the pound—making ten shillings on £5, with one shilling extra. The employment of an Attorney to enter the plaint in the County Court is unnecessary. The plaintiff or his shopman can enter a plaint. But if the following letter is truthful, the Judicature Com- missioners failed to ascertain the truth—as they seem to have done whenever the interests of needy lawyers were at stake: THE TOLZEY AND PIE-POUDRE COURTS. To the Editor of the ‘‘ Dairy Post.” Str,—It would be a great relief to the respectable portion of the legal pro- fession and to the public to see these fearfully expensive Courts totally abolished. Why should any one (now County Courts are in full working order) have power to inflict on another ruin and misery? The costs recovered in the Tolzey and. Pie-poudre Courts are unequal, intolerant, and unjust. Why should poor lawyers live on their poorer neighbours? And why should any one in an undefended action for a debt of, say £2, have to pay the following costs ? 28 On County Courts. Judgment nisi and fee ...... Searching for plea ............ £ Letter before action ......... : Judgment absolute and fee 0 0 0 0 0 0 Tustructions............00:-6 Warrant and filing.........-.. Action copy and fee 2 DEPVICE ccieciseneehes Affidavit and oath .. ei Appearance and fee ......... Copy action to declare ...... Attending taxing aids seca, eanqapaisatescsisie Execution Sse Attending register thereon BOrviCe: ic siccivcus sesrnnseiscets ces eococoooscooth i SD BRORAAUNWAWE Ro oRROORRDOaAE WAN HAMNANZ rl acowmonnmanm Instructions for declaration 0 Bill of costs and copy ..... 0 Drawing and_ engrossing ——_ SAME 2c sicnaszeae ten awardctanses £4 19 Parchment and filing......... 01 Parliament is now sitting, and the course will be to present a petition to the House, and get rid of these sinks of iniquity. Lex. The following are extracts from the evidence of Locky Harle, Esq., Deputy-Judge of the Courr or Rrcorp or Newcastuz- upon-Trnz. Mr W. Digby Seymour, Q.C., the Recorder of the town, is the Judge. He holds Courts four times in the year. The jurisdiction is unlimited in amount, and extends over Newcastle and Gateshead. “You may try any species of action” [Q. 2,215]. There are, in fact, two Courts, “The Burgesses Court and the Non- Burgesses Court.” This distinction is now merely nominal. The Recorder hears disputed cases. The procedure is the same as that of the Superior Courts—writ, declaration, pleas, &c. “It does not seem a large amount for which the plaintiffs sue!” ‘ No,” replied the Registrar, “of course the large sums go to the Courts above!” “In our Court sometimes plaintiffs sue in person, but, as a rule, they employ an Attorney. They cannot make progress without an Attorney” [2,262]. ‘‘We serve our own process. Every attorney’s clerk can serve process. In the County Court it is served through the bailiff of the Court.” “ Do you allow [County Courts allow] parties to collect their own judgment debt?” “Invariably. The Court has no knowledge of what becomes of the debt after judg- ment is signed.” ‘No inconvenience has arisen from that.” “Do you think that might be applied to County Court practice?” “I think so, I think the County Court system is cumbrous and incon- venient as regards everything being paid through the officers of the Court.” No doubt it is quite shocking to some persons that plaintiffs themselves should be able to receive their own money. The Commissioner evidently put his question to seek condemnation on so praiseworthy a system [see Report, p. 16]. “It is cum- brous!” What then is the system of existing Local and Borough Courts of Record? What is ‘“cumbrous” to suitors to whom money may be personally paid P What plaintiffs say was not asked. As regarded pleadings, the Registrar stated that “The action is On County Courts. 29 better stated in technical language. Parties (!) know better what they are about when the declaration and pleas are before the Court. There is a great deal of loose conversation in County Court cases.” The procedure of the Court is the same as in the Courts above. Itis by written pleadings. Legal assistance is necessary in consequence of the procedure [2,264]. In County Courts the Attorney “below £5 gets nothing; but I think that is to the disadvantage of the suitor /” “We have no authority to grant new trials.” [Local Courts of Record Act, 1872, gives this power.] “I suppose the Attorneys prefer your Court to the County Court?” “Of course they do.”— “T frequently go into the County Court. I had two heavy cases this last month. One was for £50 and the other £33. These were quite Assize cases. One, a few years ago, would have been tried at the Assizes with great solemnity. It related to damage done by alkali works. Now the farmers have got into the way of going to the Cownty Courts.’’— The Attorney gets the fees in your Court and the Government gets them in the County Court.” — ““We give the choice of two Courts instead of one to the public with- out any expense to the public.”—‘“Is not the choice a fancied choice?” “There is a great deal of fancy in litigation, and itis as well to gratify it.” ‘You can give costs to a plaintiff if he recovers ten shillings?” “ Yes, and that is felt rather to be a grievance ” [2,249]. “We have always had very able men as Recorders of Newcastle, men who live in London and go (come?) down with the best law.’ — “Ours are favourite Courts.” ‘The public are satisfied with the Court and pay for it themselves.’’—‘‘ The suitors pay for it, of course” [2,355].—“At present the County Court Judge is overwhelmed with work. He has got the Bankruptcy and Admiralty jurisdiction lately, and he cannot get through it in one week.” In 1872 there were 262 cases under £20, and 26 above £20, entered in the Local Court of Record. Hight cases were above £50, and 19 cases were heard with a jury and 1 without. The sum of £3,203 was sued for. A County Court overwhelmed with business shows that other persons than farmers “‘ have got into the way” of seeking its assistance, though it is not the favourite Court—that is, with “the profession.” But is not the existence of a Court of Law which can be described as the Deputy-Judge describes it, a public scandal and its course of procedure evidently one of plunder? In the County Court of Newcastle, in 1872 there were 4,702 plaints entered under £20, 182 above £20, and £19,992 was sued for. In the County Court of Gateshead 2,018 plaints under £20, 25 cases above £20, and £5,100 was sued for. There were 232 cases above £20, within the same extent of district as that of the Local Court of Record. There were also in the Newcastle County Court 32 Admiralty cases. 30 On County Courts. Tur Exurer Provost Courr.—Mr Denis Moore, the Registrar, commended this Court for the same reasons that Mr West, Q.C., and Mr Kay, Q.C., commended the Salford Court. Indeed it might be imagined by the almost exact identity of the terms of censure of County Courts used by the officials of the old Courts, that these officials were members of a “Law Costs Union.” It is said— “ Suitors come into Court on account of the expedition of the pro- cedure; also on account of the smaller Court FrxEs (not ‘costs ’) than those of the County Court; the greater certainty of obtaining money upon judgments, and the absence of the system of allowin debts to be paid by instalments [3,314] in cases under £20.” The power it has of foreign attachment was described to be “ex- ceedingly valuable,” being a process to enforce appearance. The jurisdiction of the Court is unlimited in amount. Disputed cases are heard four times a year. And what do the judicial statistics for 1872 ‘show ? There were 23 plaints in the Provost Court for sums under £20, and 10 for sums above £20—33 cases in the year! In the County Court of Exeter for 1872 there were 3,362 plaints for sums under £20, and 62 for sums above £20. The opinion of the people of Exeter respecting County Courts is evidently not that of the Registrar of the Provost Court. Four Courts in the year for the hearing of contested causes do not show much regard for the “‘ex- pedition ” boasted of in the procedure of the Provost Court. Then the old Common Law system of procedure prevails—writ, service, appearance, declaration and its service, pleas, &c. The Judge only heard two causes in the year with a jury, and five without, namely— four on default, and one a consent judgment! [Jud. Statis., 1872, p.17.] Costs are allowed on the scale of the Superior Courts [8,338]. Payments are made by defendants to the plaintiffs. It would “merely embarrass the Registrar if he had to keep quasi banking accounts with every defendant.” When it was said payments were made to plaintiffs, the Commissioners did not ask if for the word “ plaintiff” the word “ attorney” was meant; nor did they ask what bills of costs amount to. How such Courts as these pecuniarily affect suitors was an inquiry which ought to have been made complete. Dersy Locat Courr or Recorp.—In 1854 [Report of Commis- stoners on Cownty Courts, p. 55] it was stated by Mr Frear, that in this Court of Record an action was brought to recover £4 7s. on a bricklayer’s bill, there being only about 17s. in dispute. ‘The case was tried before the Recorder and a jury of 12 (as in every case in a Borough Court which goes to trial, however small the amount in dispute may be), and a verdict was given for the amount claimed. The plaintiff’s costs were taxed at £14 3s.; an execution cost £1 19s, 6d.; making debt and costs £20 9s. 64d. The defendant’s On County Courts. 31 costs were £21 4s. 4d., and he not being in a position to pay this debt, his own attorney issued a writ against him for the amount in the same Court.” “Had the Borough Court not existed,” said Mr Frear, “‘ the plaintiff himself, without the intervention of an attorney, might have taken out a County Court summons. The costs would have been trifling in comparison.” Section 29 of the County Court Act, 1867, now applies to cases under £10, and only County Court costs would be recoverable. Another action was brought in the same Court to recover £35 16s. 1d., alleged to be due from an attorney employed by one of the political parties of the town. The jury were dismissed the next morning after being locked up for the night. The case was tried again and a verdict given for the plaintiff contrary to the summing up of the Judge, the jury being opposed to the politics of the defendant. Execution issued for £116 5s. 5d.; but on appeal the costs of the first trial were disallowed. ‘Had there been no Borough Court,” said Mr Frear, “the action would have been in the County Court, there would have been a jury from the county —a fair trial and less costs.” Six cases were tried in 1872. There were 240 plaints under £20, and 94 above £20. The sum of £4,875 was sued for. In the Derby County Court in 1872 there were 6,799 plaints; the sum of £14,120 was sued for, and there were 65 plaints above £20. Kriyeston-upon-Huti.—In this Court, in 1872, there were 36 plaints entered under £20, and 51 above £20. The sum of £3,095 was sued for. The Registrar made the same objection to County Courts as Messrs West and Kay [ante, p. 18], namely, to instalments, and Mr Hunt, the chairman, remarked, “they (suitors) do not like the risk of getting their money by instalments” [see ante, p. 16]. The Judge sits four times in the year. There were four trials in 1869, and in 1872 there appears to have been two [Jud. Stut., 1872, p.17]. In the County Court of Kingston-upon-Hull there were 6,540 plaints; 148 were above £20, and £21,463 was sued for; and there were, also, 7 Equity cases and 21 Admiralty cases in 1872. Kingston is one of eleven districts comprised in the C. C. Circuit 16. In 1837, before the establishment of the new County Courts, the Town Clerk and Deputy Judge wrote as follows: The Court has jurisdiction over any kind of action and to any amount if the cause of action arises in the borough of Hull, but though thousands of such causes arise, there are but few sued for in the Court of Record owing to the attorneys’ profits being less than in the Courts of Westminster. The ‘first class attorneys,”” not considering the emoluments adequate to the trouble, decline practising in the Courts at allin the same manner as they, as far as possible, decline suing in the Courts at Westminster for debts under £20, Since a2 On County Courts. those Courts fixed an inadequate scale of remuneration as costs, on recovering small debts, the respectuble class of attorneys (not of such extensive practise as the former) who occasionally practise in this Court of Record, only appear to do so when from the circumstances of their own client or those of the defendant, they have reason to think that if a Westminster action was resorted to, the costs though nominally greater, will yield them even less profit from the in- ability of the parties to pay so heavya bill. There is a class of attorneys who sue in the Court of Record because their own outlay in the cause of the suit is less than at Westminster. These men on settling an action will be found to have made the parties pay as extravagantly as if it had been a Westminster action. As 29 out of 30 actions are settled by arrangement out of Court, it is only in one such an action out of 30 that the power to tax the attorney’s bill is of any use in securing cheap law to the parties. [Parl. Paper, No, 338, 1829.] Mr Mason, the Registrar of the WaxrrizLD Court, says: “There was a Local Court here, a few years ago, having jurisdic- tion in debts not exceeding £5, and the costs attending the recovery were so enormously heavy, and the mode of procedure so vexatious, that I felt it my duty to call the attention of the authorities to it and other similar Courts, and I believe that in consequence of this, Sections 28 and 29 were introduced into the County Courts Act, 1867, chap. 142. These sections, I apprehend, have the effect of abolishing, or practically so, all similar Courts throughout the country.” Section 28 prohibits actions being brought in any Hundred or other inferior Court, not being a Court of Record, and Section 29 provides that where any action or suit shall be brought in any other Court [Local Court of Record] than the Superior Courts of Law, which could have been brought in a County Court, and the verdict recovered is for a less sum than £10, the plaintiff shall not recover from the defendant a greater amount of costs than he would have been allowed if the action or suit had been brought in such County Court, unless the Judge shall certify that the action or suit was a fit one to be brought in such other Court The effect of this 29th section on one, and perhaps several Local Courts of Record, is thus described: ‘‘ There is a Local Court, called the Court of Pleas of the borough of Northampton. Its procedure, practice, and scale of costs are precisely the same as in the Court of Common Pleas under the Common Law Procedure Acts. Since the Statute of 1867, taking away costs in debts under £10, it has ceased to have any business, or nearly so.” [Mr W. Dennis, Registrar, County Court, Northampton.] Who then having com- mon honesty would take cases under £10 into a Court where trials are had four or six times a year only when there is a monthly Court at hand? Who so corrupt asto seek the revival of such disused Courts P Mr Patchett, the very intelligent Registrar of the Norrincuam Counry Court, says :—“ That writs are constantly issued from Local Courts of Record at distant places, and sent into this district for On County Courts. 33 service. Many cases of great hardship and heavy costs have thereby been brought under notice. I think this practice should be pro- hibited and that the jurisdiction should be exclusive within the districts of the County Court. Only one mode of law should be in operation within the same district. It is no uncommon thing for a summons from the Lord Mayor’s Court in London and certain Local Courts in the provinces to be sent into this district with a mode of procedure entirely distinct from and an amount of costs far exceeding that of the County Courts. If these Local Courts con- tinue, I think they ought to be confined to their own districts.” The honour, intelligence, and integrity of such gentlemen as Mr Mason, Mr Patchett, Mr Reynolds, and very many other Registrars and solicitors, place them as a class in the discussion of law reforms in striking and distinguished contrast to the advocates of local institutions and of legal proceedings productive only of corruption and plunder. The Judicature Commissioners, in their Report of the 8rd of July, 1872, recommended the abolition of all these Local and Borough Courts. In the judicial statistics for 1872 only 26 of such Courts made returns of the work transacted in them. Omitting the Salford Court and the Liverpool Court of Passage returns there were only 443 cases above £20 entered in the 24 other named Courts; and of these 444 cases, judgments were obtained in 183. Omitting also the same two Courts (Salford and Liverpool), only £39,235 was sued for in the other 24 Courts; but seven named Courts made no returns. The Commissioners say : It is possible that their recommendation may meet with opposition from some of the powerful corporations interested in their maintenance. It will perhaps be said, that they are ‘‘ self-supporting,” and that they supply a local want. But there is great reason (!) to believe that these Courts are frequented by a class of practitioners who get /arger costs from them than they would from the County Courts, and many experienced attorneys, the most competent judges of their value, have made great complaint of them. Further, it must not be overlooked, that although these Courts may be self-supporting, yet they are so at the expense of the country in respect of the Superior and County Courts to which the suitors would otherwise have recourse, and which they would then help to support. The existence of different Courts with similar jurisdiction com- peting for business by the offer of better costs is in the highest degree oljectivnable, Further, we are of opinion that the appointment of all Judges should be vested in the Crown, and that no municipal or other body or person should derive profit from the right to hold Courts of Justice. We therefore recommend the abolition of all Local and Inferior Courts of Civil Jurisdiction. But the corrupt members of powerful corporations will not be the chief opponents to the change. There are Members of Parliament equally anxious to protect personal or professional interests antago- nistic to such a reform; and this is shown by the Act of the 35th E 34 On County Courts. and 36th Vict. ch. 86, which is to be cited as “The Borough and Local Courts of Record Act, 1872.” It received the Royal Assent on Saturday, the 10th of August, 1872, or nearly six weeks after the Judicature Commissioners had recommended the abolition of these Courts! This Act contains strange provisions. It is made up of two parts—namely, 8 sections, and a Schedule of 12 sections. After the Bill had been read a second time in the House of Commons, it was referred to a Select Committee, of which the Attorney-General and Mr H. W. West, M.P., Q.C., Judge of the Salford Court, and Recorder of Manchester, were members. As respects the first part of the Act, it authorises that, by an Order in Council, all or any part of the “ Interpleader Act, of the 1 and 2 Wm. IV. ch.58, and of the pro- visions contained in the said Schedule, shall apply to ati oR any Locan Courts or Courts or Recorp in ENGLAND and Wates. The Salford Act, section 109, only empowers the Registrar to try actions of Inter- pleader, and there is no provision for the trialof such actions when there are writs of execution issued to distant places. In such Order Her Majesty may alter and modify such provisions as are mentioned in the said Schedule so as to adapt the same to the constitution, juris- diction, and procedure of any such Courts. By section 3, “an Order in Council may direct that any writ, order, summons, or process issuing out of any such Court of Record may be served in such part or parts of England as shall be specified in such Order.’’ The Salford Court Act [which in the following remarks will be cited by the letters 8. C. A.], section 40, also authorises any such writ, &c., issuing out of that Court to be served in any part of England and Wales. This is a provision giving an authority all over England and Wales, and is contained in a Local Act of Parliament! In consequence of this power Salford writs make their appearance in different parts of England and Wales. Section 4 of the Act of 1872 provides that two or more Courts may be held at the same time. This section has especial application to the Salford Court, which has two Judges. Section 5 relates to the use of affidavits. Section 6 provides that when final judgment has been obtained for a debt or damages not exceeding £20, exclusive of costs, a writ or precept may be sent to the Registrar of any County Court within the jurisdiction of which the defendant may possess goods or chattels, and the High Bailiff is to execute it. If the goods are claimed by a third party the Court im which the action is brought must try the question of title. Section 9 of the Schedule of the Act contains similar provisions as regards judgmeuts for not less than £20 exclu- sive of costs. In such cases, the judgments may be transferred and filed with the Clerk of the Judgments of a Superior Court, and the judgment becomes as effective as if it had been originally made in such Supcrior Court. [This section is similar to section 88 of the On County Courts. 35 S.C. A.] By section 7 a Judge may appoint a Deputy subject to conditions, and these conditions are now contained in an Order of Council dated June 26, 1873. Section 8 provides that the same fees shall be taken in the City of London Courts as are, for the time being, taken in County Courts, and that section 12 of the Schedule shall not apply to the London Court or to the Salford Court. The provisions of The Schedule are as follows:—Section 2 authorises the Judge of a Court of Record to hear motions, &c., out of the limits of his jurisdiction [S. C. A., section 20]. Sections 3, 4, and 5 relate to fees [S. C. A., sections 29, 30, and 31]. By sections 6, 7, and 8, power is given to parties, after issue joined, to state, by consent, a case for the opinion of a Superior Court, and to enter up a judgment in conformity with its opinion [8.C. A., sections 61, 62, and 63]. Section 9 has been already stated [S C. A., section 88]. Section 10 provides for the issue of Commissions to examine wit- nesses beyond the limits of England and Wales [S. C. A., section 103]. By section 11 power is given to a Judge to nonsuit a plaintiff and to order new trials [S. C. A., section 90]. Section 12: No action before judgment is to be removed to a Superior Court, except by leave of a Judge, and then upon terms [S. C. A., section 129]. Thus it will be seen that the Schedule of this Borough and Local Court of Record Act of 1872 is taken from the Salford Hundred Court of Record Act, 1868, and the character of this Hundred Court of Record, as given in evidence before the Judica- ture Commissioners, has been already illustrated. By various Orders in Council, dated June 26, 1873, the provisions contained in the Schedule of this Act, 1872, have been extended to some Courts of Record, namely, that of the city of York; the borough of Kingston-upon-Hull; and clauses 1, 2, 9, 10, 11, and 12, to the Mayor’s Court of London, to the borough of Scar- borough, to the Tolzey Court of the city of Bristol, and to the county and borough of Poole. A similar Order of the same date extended the provisions contained in the Schedule to the Hundred Court of Salford, but this Order was shortly afterwards annulled. What was desired in that Court was the extension to it of the provi- sions of the Interpleader Act of the 1 and 2 William IV., and this appears to have been most properly refused. Were the members of the Select Committee of the House of Commons ignorant of the almost certain and oppressive consequence of extending the pro- visions of the Interpleader Act when they manipulated the Bill? Ought claimants of goods seized in Wales to attend on the Registrar at Salford along with their witnesses? It was overlooked, also, that the Local Act of the Salford Courts gave to this Court all the powers which the annulled Order in Council of June 26 professed to confer under the Act of 1872! 36 On County Courts. The business in the Borough Courts of the towns to which the Orders in Council of 1873 apply, with the exception of the Lord Mayor’s Court, was as follows : Plaints not 1871 exceeding £20. Above £20. Sued for. York - - Noreturn. No return. No return. Bristol 446 181 £20, 262 Kingston - - 36 51 3,095 Scarborough No return in Jud. Stat. Poole - - - No return in 1837 or in 1871. In 1887 there were sixteen summonses issued from the Court at Scarborough; £114 8s. 11d. was sued for, and the Court sat one day! At York, in 1837, there were 332 writs issued, and the debt or damages stated in the writs were generally double the debt sued for; but 176 cases were under forty shillings! The Registrar expressed his hope “ that his office would be in the patronage of the Judge of the Court and not of the Town Council, as party feeling ran so high that it was scarcely possible, by the utmost care and the strictest attention to duty, for the officer of the Court to steer a safe and straight course if his politics at all differ from the dominant body of the Council.” [Parl. Paper, No. 338, 1839.] Is it through a local improvement of public morals in York that the Court of Record is sought to be resuscitated, in opposition to the County Court ? The amount of business in the County Courts of the last-named towns was, in 1872: Plaints. Above £20, Sued for. York - - 1,605 77 £8,177 Scarborough = - 1,005 24 3,640 Poole - - - 599 16 2,169 Kingston - 6,540 148 21,463 Bristol - - 18,853 244 47,813 As the borough of Poole has been honoured by the Privy Council, it may be regarded in its distinction as an index of future measures. Its population in 1851 was 9,255; in 1861 it was 9,745; and in 1871 it was 10,129. Are all the boroughs which have Recorders to have Courts which have almost disappeared revived ? [ Ante, p. 32.] Is it designed that all the cases of £20 and upwards shall be withdrawn, through the temptation of increased costs, from County Courts to Borough Courts? The Law List of 1873 gives the names of 105 boroughs and of the Recorders of the same. If Poole has a revived Court of Civil Jurisdiction, to be presided over by the Recorder— there being a very small amount of business for the County Court in that town to transact—there can hardly exist a reason against reviving and awakening from their long dormant state every Borough Court of Civil Jurisdiction in the kingdom,—however On County Courts. 37 corrupt such a proceeding may be. Can a Court, such as the Recorder’s Court at Poole, assuming it shall absorb all the present business of the District County Court, be “ self-supporting ”—if self-supporting Courts were desirable, which most assuredly they are not? What will be the advantage of extinguishing the County Court? The present costs of suitors will still have to be paid by suitors, and indeed more, for costs will necessarily be increased, though the increase may not appear in Parliamentary estimates. The law taxation will remain though concealed. The Parliamentary estimates relating to County Courts may be diminished in amount, but this diminution will not lessen the personal local taxation of suitors. No public benefit can result from the change which is apparently contemplated. The 100 Recorders for whom work is to be found cannot be expected to perform it without some conditions to secure adequate payment for services rendered,—for the same services, in fact, in respect of which County Court Judges are already paid. The Act of 1872 ought to have been opposed by the full strength of the Government. It is one of the greatest Law Joss accom- plished since the first Reform Bill was passed; but, unfortunately, Sir James Graham and Lord Palmerston have been the only Home Secretaries since 1846 who have shown an interest in the mainte- nance and success of the County Court system. The “ Judicature Bill, 1873,” also indicates an intended change of great importance in the present system of County Courts. By section 88 it is declared that it shall be lawful for Her Majesty, from time to time, by Order in Council, “to confer on any Inferior Court of Civil Jurisdiction the same jurisdiction in Equity and Admiralty, respectively, as any County Court now has or may hereafter have, and such jurisdiction, when conferred, shall be exercised in the manner by this Act directed.” Time will disclose the scheme which under this Act of 1873 is to call into operation local Courts having Equity and Admiralty jurisdiction distinct from or concurrently with the County Courts. It cannot be needed unless the extinction of the County Courts having Equity and Admiralty jurisdiction is contemplated. It should not be forgotten that the County Court Judges who have Admiralty jurisdiction are, as in the case of keepers of light- houses which guide the course of the mariner, required to be always prepared to protect the interests of shipowners. They are enjoined {section 13] to hold special Courts “‘as soon as may be after having had notice of an Admiralty cause having arisen within the jurisdic- tion of the Court.” That such is the case, should suggest to the consideration of the advocates of “ self-supporting Courts” the impossibility of sustaining the expenses of a local Admiralty juris- 38 On County Courts. diction out of the pockets of shipowners. The Recorder of Poole, in common with other Recorders of sea-port towns, may under this Judicature Act be invested with the powers which are exer- cised by the Judges of County Courts having the most extended jurisdiction. What is expected to be his remuneration; and how are his expenses to be defrayed? Costs will be increased; and law taxation, unequally imposed, must, in order to pay him, be exacted from a special class peculiarly entitled to the protection of the entire community. The intended system must differ from the system existing, or the existing system ought not to be interfered with or broken up. What is the expected economy of a new system P The Local Act of 1868 constituting the present Court of Salford ought, it is said, to be named among the “ oddities of legislation.” If this is so, what terms will describe the Act of 1872, which authorises new powers, with the assent of the Crown, to be conferred on nearly 100 Recorders? And why has this been done? The reader has before him sufficient information respecting the Lord Mayor’s Court, the Salford, the Bristol, and other Local Courts of Record, to form a correct conclusion. Is it not obvious that the end in view is to add to the taxation of suitors by increasing the amount of costs chargeable upon them? The town of Poole, for example, has not claimed the notice of the Crown because two Courts of Civil Jurisdiction are needed, but because the costs of the County Courts, its frequent sittings, and its simple procedure, interfere with professional profits. By the 15 and 16 Vict. ch. 54 [1852], section 7, if the Council of any city or borough, or a majority of the ratepayers of any parish, within the limits of which a Court of local jurisdiction, other than a County Court, is established under the 9 and 10 Vict. ch. 95, or into the limits of which the jurisdiction of such Court of local juris- diction shall extend, shall petition the Queen in Council, that the jurisdiction may be excluded in any causes whereof the County Court has jurisdiction, the Privy Council may make an order to this effect : ‘This proceeding was taken in respect of the Mayor's Court at Birmingham, the Ipswich Court of Small Pleas, and the Nottingham and Worcester Courts of Record.” Thus, after having closed the Courts of Record of the city of Worcester and of the great towns of Nottingham and Birmingham, the Courts of Record of petty importance of the towns of Scarborough, York, and Poole are invested with an enlarged jurisdiction. Certainly the new legislation and the Orders of Council of 1878 require explanation in order to be purged from the discredit of apparently scandalous objects. On County Courts. 39 All these Local Courts ought, as the Commissioners recommend, to be abolished ; but who can sufficiently blame the Members of the Select Committee of the House of Commons who in 1872 secured a vote of the House of Commons hostile to those legal institutions which the late Earl of Spencer, Lord Lyndhurst, and Lord Brougham regarded to have been among the most important measures to which they had obtained the assent of the Legislature? And for whose advantage was the passing of the Act of 1872 accomplished? Not for that of the public. There is another class of Courts which it is necessary to name, though the establishment of the new County Courts caused their immediate abolition, namely—“ Courts or Requzst.” One hundred and six of these Courts were closed in 1847. [Schedule of the 9 and 10 Vict. ch. 95.] Their jurisdiction did not generally exceed £10, and in some places such as Yarmouth, Wisbeach, &c., less. The power of imprisonment which they possessed was very great, and exceeded in many places that given to the new County Courts. The officers of these Courts received compensation. Mr D. D. Heath, the Judge of the Bloomsbury Court, was awarded £2,414 a year; the Right Hon. J. Parker, Judge at Sheffield, £1,239; Mr John Hardy [3 Portland-place], of Pontefract, £948 a year; Mr T. W. Hill, £405, and the Hon. Mr F. G. Molyneux, £148, both of Manchester; and Mr T. W. Parker, of Blackheath, £596 [Parl. Puper, No. 3, Sess. 2, June 8, 1859; Parl. Paper, No. 100, March 11, 1862, p. 201]; and the amounts of smaller allowances annually paid with a nominal list of the recipients are printed in the Parl. Paper, No. 303, p. 53, June 2, 1862. The necessity of establishing Local Courts for the CoLLEction oF Smatt Desrs had been acknowledged by Parliament from time to time for 140 years. Forty-five Courts of Request were established between the years 1832 and 1846 [Schedule B, 9 and 10 Vict. ch. 95]. Sixty-one such Courts had been established subsequent to the year 1690. The oldest of these Courts were—Newcastle-on-Tyne, 1690 ; Gloucester, 1690; Norwich, 1700; Canterbury, 1752; Doncaster, 1764; Chippenham, 1765; Derby, 1766; Exeter, 1773; and Ely, 1778. The passing of a hundred Acts of Parliament to aid the collection of small debts alone afforded very perfect evidence in 1846 of the necessity of a general, uniform, and more extended system for the local administration of the law in cases of contracts. At Bath, the Court of Requests had jurisdiction to the extent of £10 only, and could imprison for 200 days. In 1835, 109; in 1836, 100; and 1837, 156 persons were there imprisoned. In 1837, 49 were imprisoned 20 days; 26 for 40 days; 21 for 60 days; 12 for 80 days; 14 for 100 days; and 34 for 200 days. [Parl. Paper, No. 40 On County Courts. 182, 1885; and Parl. Paper, No. 338, p. 5, 1839.] The same stato of things existed at Boston, Bradford, Hull, Trowbridge, &c. The Judges of the new County Courts can imprison for not exceeding 40 days, and the common term of imprisonment is less than 14 days, generally eight days. Imprisonment by the Order of a Court of Requests “satisfied” and discharged the debt. With its extended jurisdiction, far beyond that of the Court of Request, the total number of persons imprisoned in the year 1872 by the Order of the County Court at Bath was 13, and at Bath in 1872 there were 4,012 plaints and 80 above £20. On Circuit 52, including Bath, in the year 1872, the number was 47—[Parl. Paper, 1873, No. 123]—and it was proved that those who were committed had the means or ability to pay the debt, or an instalment of the debt. “Tt was stated in the House of Commons (February 19, 1827) that in the space of two and a-half years 70,000 persons were arrested in and about London, at an estimated expense to the parties of between £150,000 to £200,000! In 1827, in the metropolis and two adjoining counties, 23,515 warrants to arrest were granted, and 11,317 bailable processes were executed.” [Hlliot on Credit, p. 19.] The old Middlesex County Court had jurisdiction in cases under 40s. only ; and in 1835, 771; in 1836, 780; and in 1887, 907 persons were imprisoned by order of the Court. [Parl. Paper, No. 338, 1839, p. 22.] The Judges of the Superior Courts, as well as those of the County Courts, now hear judgment summonses, or applications for the committal to gaol of defendants under the Debtors Act, 1869, on account of the non-payment of debts under £50. [32 and 33 Vict. ch. 65, section 5, sub-section 6.] These summonses are heard in Chambers by the Judges of the Superior Courts and they ought to be heard in open Court. What would be said of the Judges of the County Courts if applications to deprive a man of his liberty were heard where the public would not have the freest access, and not subject to the earliest public reports of every case. It would be instructive to all County Court Judges to know what passes in Chambers. It will thus be seen how enormous was the change effected in 1846 in the abolition of petty and oppressive Courts of Law; in the extinction of the power to imprison debtors without regard to their means or ability to pay; in putting an end to the extinction of debts by the mere act of imprisonment; in preventing men submitting to imprisonment when having the means to pay and enabling them to pay by instalments when unable to pay at once the whole sum due, for judgments to pay by instalments were not formerly authorised. On the excellence and economy of the procedure of the new Courts more will be said hereafter. Yct the object of those who guided On County Courts. 41 the law legislation of 1872 and 1873 seems to have been to attack the County Courts and to restore the jurisdiction of Local Courts, which public opinion had condemned. It was affirmed that the District Courts of the County Court system were too numerous and that “there might be a great reduction in the number both of the Judges and of the Registrars,” and yet the Act of 1872 authorises the resuscitation of defunct Courts of Record, and therefore sanctions the employment of more Judges!! [Judicature Ovmnvission, Second Report, pp. 17,18.] Both Houses of Parliament ought to have been openly informed of the attack contemplated on the County Court system through this Act of 1872. Parliament having closed most of the old local Courts of Law, the next great step was one of construction: the building up of that system of County Courts which to the contentment of the public has existed for twenty-six years, notwithstanding the attacks made against it by all classes of lawyers, from Judges of Superior Courts to the clerks of attorneys. . Here let us pause and dwell on certain opinions of the great jurist, Bentham, respecting Local Courts: “ Justice,” said he, “ is the security the law provides us with, or professes to provide us with, for everything we value or ought to value,—for property, for liberty, for honour, and for life. It is the possession which is worth all others put together, for it includes all others. A denial of justice is the very quintessence of injury—the germ and substance of all other injuries.” He proposed that in every parish there should be a Judge: in certain “ districts’? a Judge; in every “department” a Provincial Court of Appeal and a Central Supreme Court :—to all classes of Courts authority to be given over all sorts of persons, and every sort of cause, throughout the kingdom, saving only the jurisdiction of certain “ Tribunals of Exception.” He wished for the re-establishment, with improvements suited to the present state of society, of the old system of Local Judicatories : the erection of edifices for this end; and remuneration to be at the expense of the public instead of being at the expense of switors,—a “‘proportionably LARGE ADDITION wnavoidably being made to the present amount of the regular recurrent national eapense.” “The consideration of local distance,” said Bentham, “ including that of the time and expense of travelling, tends on two accounts to necessitate the multiplication of tribunals—on the score of economy, and on that of promptitude. Expense attending the pursuit of justice has the effect of a denial of justice to all who have not wherewithal to defray the expense; and consumption of time, to him who lives by the sale of his time, is equivalent to expense. Distance in point F 42 On County Courts. of place making a proportionable distance in point of time is pro- ductive of failure of justice.” There must, in the whole, be several tribunals, that everywhere, within a moderate distance of the remotest suitor there may be one.” = . ; “Though the quantity of business arising within a given terri- tory took not up half or even a quarter of the time of the Judge, yet if the territory be so extensive that any persons living beyond the circle that bounds it would find themselves beyond the greatest admissible distance, the territory of the Judge ought not therefore to be enlarged, munch less any other territory tacked on to it.” [Judiciul Lstablishments, ch. 8, vol. 4, p. 328. ] As respected a common class of cases, Mr Bentham said: “ No wrong that I know of can be a trivial one which to him to whom it is done is a serious one; serious to such a degree as to make it worth his while to demand redress at the hands of justice. Conduct is the test of feeling. I know of no right I have to set up any feelings of my own as the standard of those of my neighbour in con- tradiction to a declaration of his the truth of which is evidenced by his own conduct. What to one man may be trivial, to another may be of high importance. In pecuniary cases, the smaller the sum in dispute the less reserve is used in branding the conduct of parties with the charge of litigation, of which, in such cases, the reproach is apt to fall principally, if not exclusively, to the plaintiff’s share.” —‘‘There are more of the poor than of the rich, and to the eye of unreflecting opulence the causes of the poor are all érivial ones.””— “ We think of the poor in the way of charity ; for to deal out charity gratifies not only benevolence but pride. We think much of them in the way of eharity; but we think little of them in the way of justice. Justice ranks before Charity.” That cause is a cause of importance in the eyes of the legislator that would be so to a man of his opulence, that is of his dignity, and to the great men, that is, to rich men he is wont to live with : of whom alone he is wont to think of with any degree of complacency and who alone are deserving of his care. That cause is a cause of importance in the eyes of a lawyer which will afford a lawyer such a fee as a man of his dignity may ‘‘stoop to take.” Such a cause is to be summoned up to those Superior Courts where men of such dignity do not disdain attendance. A cause of no importance is a cause which will afford no such fee. What becomes of such a cause or of the class of people likely to be concerned in such cause is a question not worth caring about. The cause and the party are turned over without appeal to some obscure and inferior jurisdiction which does with them what it pleases. [Judicial Establishments, vol. 4, p. 333 : first printed in 1790. ] What is thus condemned it will be seen in the following pages the Judicature Commissioners recommend. The advance we have made in correcting what is thus censured, has interfered with legal profits, and the Right Hon. Sir G. Collier, followed by the Attorney-Gene- On County Courts. 43 ral, actually recommend a retransfer of part of the jurisdiction of County Courts to the Superior Courts, in order, no doubt, to secure the inferiority of the jurisdiction. They assign no reasons for such a change in order to prove that it would be beneficial to suitors. It would, if effected, be a legislative reaction in favour ouly of profes- sional pillage. “In the history of the Roman people public acts of injustice, atrocious in themselves, are coloured under specious names accom- panied with a pompous eulogium respecting Roman virtues. The abolition of debts occupies a conspicuous place in the early trans- actions of the Republic. A return of the people to Mount Aven- tine obliged the Senate to pass the sponge over the rights of creditors. The historian excites all our interest in favour of fraudu- lent debtors who discharged their debts by a bankruptcy, and does not fail to render those odious who were thus despoiled by an act of violence. What end was answered by this iniquity ?” [Cvvil Code, Part 1, ch. 15.] “Individual interests are the only real interests. Take care of individuals: never require them or suffer them to be injured, and you will have done enough for the public.” “The more the principle of property is respected, the more it is strengthened in the minds of the people. Small attacks upon this principle prepare for greater. Ithas required along period to attain to the point at which we have arrived in civilised society ; but fatal experience has shown with what facility society may be overturned, and how the savage instinct of robbery may assume an ascendancy of the Laws.” [Principles of the Civil Code, Part 1, p. 321.] Mr Bentham proposed that Judges, on their appointment, should make a declaration of the duties they would observe. Part of the proposed declaration was in these terms : “JT will at no time, through impatience or otherwise, knowingly cause or permit justice to suffer by undue precipitation; and, in particular, I will not bestow less attention upon the cause of the poor than of the rich, considering that where small rights are seen to be contemned, great ones will not be deemed to be secure: and that importance depends, not on nominal value, but upon the pro- portion of the matter in dispute to the circumstances and its relation to the feelings of the parties. I will not, through impatience or favour to the official, or to the professional advocate, show discountenance to him who pleads his own cause, or to him who pleads gratuitously the cause of his friend, but rather show indul- gence and lend assistance to their weakness.” [Works, vol. 9. 534]. He proposed, also, that there should be attached to Courts, an Eleemosynary Advocate to assist helpless persons [Const. Code, B. 2, ch. 12, sec. 13; vol. 9, p. 503, and vol. 3, p. 342]: 44 On County Courts. “Every subject,” he said, “to have a right to plead his own cause in every stage, and before every Court, as well by word of mouth as in writing, and as well by himself as by the mouth or hand of any person of his choice.” The compulsion to choose an advocate he would be unwilling to choose, “ carries with it all the oppression and iniquity of a tax on law proceedings without any of the use.’ He would have had the whole system of legal monopoly abolished “and one important and beneficial consequence (he held) would be the throwing down the legal partition which separates the two branches of it.’ As respected the Courts in which justice is to be administered, he said: : “The Theatre of Judicature, in form as well as dimensions, after the necessary regard paid to frugality, should be adapted to the reception and entertainment of the greatest number of persons who in a state of comfort can receive, through hearing and sight, infor- mation of what passes. He proposed, also, the seats of jurors should be better and more convenient than they are, and that the seats of visitors should have a slight back for support and a desk to lean and to write on.” He was too just a man and too well informed on the duties of government to have sanctioned by his approval the idea of a “ self- supporting Oowrt of Law.” Any such suggestion would have been treated by him as an abomination. He held that the administration of the Law should be provided for by the Government as a national charge, and he said,—‘‘ That to throw upon litigants the whole, or any superior share, of the burthen of the Judicial Establishment is no more reconcilable to justice than would be the throwing,-on the occasion of every war, the whole burthen of the military establish- ment and military defence upon a thin line of frontier.” The new County Courts were first held in April, 1847, under the Act passed on the 28th of August, 1846, and up to the end of the year 1872 no less than 18,200,811 plaints had been entered in them. The amount sued for in that time was £48,794,746, and judgments had been obtained for £24,732,095. The difference, namely, £24,062,651, less the amount through verdicts for defendants, was either settled for or paid on the simple issue and service of the summons. There are now 56 Circuits, and 449 Court-towns. The cost of the mere issue of the summons, and also of the service of it in any part of England and Wales, is one shilling in the pound, or five per cent. up to £20 only. Plaintiffs and defendants are free to enter cases and to defend themselves without any assistance, and they largely avail themselves of this power by reason of the Circuit Courts being held so near to their homes that they can generally attend On County Courts. 45 them and return from them on the same day. If the Courts were held at places distant from their homes professional profits would be greatly increased. The protection of the law would be lessened in the degree that professional plunder would be favoured; and this is blindly advocated as being economical. ‘To the public the Courts have been a great success, but they have not been popular among lawyers, for persons of intelligence have needed no legal assistance when their business has been conducted with reasonable care and as all businesses ought to be conducted. They have enormously inter- fered with legal profits, and they have checked expensive and costly litigation. Of late years the average yearly amount sued for has exceeded two millions of pounds sterling, about one-half of which amount is annually paid or settled for on the service of the summons. In 1872 the sum of £1,308,099, less the amount through verdicts for defendants, was thus paid or settled for, and plaints were entered for £2,590,792. It is obvious that the public need these Courts and that they cannot be destroyed with impunity. In three County Court Districts a larger sum of money was sued for in 1872 than was recovered by verdicts in the three Superior Courts : C.C.C. 21. 6. 14, Birmingham, &c. Liverpool, &c. Leeds. £94,025 £33,234 £30,276 Queen’s Bench, Common Pleas. Exchequer. Nisi Prius. £53,088 £67,578 £73,491 £191,726 The total sum recovered by verdicts in the Superior Courts and on Circuit in 1872 was £385,883. [Judicial Statistics, 1872, p. vii-] The table on the following page was drawn up by Mr Whigham, J.C. C. It exhibits the amount of business transacted in the County Courts in the last six years, but not the labour of travelling on the part of the Judges. 96F°S ’ Bor ? — ie ree aa go | gL2006 #68 orl ore 998 689 e60°sse TF | 26L‘06STF 66L‘eE 9 3L81 812 ZBI, 196°988 2 Srr'l 9208 0st? —— poate hoot ce? | sec°SI6 age 98T ¥ o19 COLT o LOL OSL'Fee' LF | GET'CO9'CF TehPT 9 TLST re F LES BL0F06 ? 66o°T Liv'S : y IS 2 : 81s 3 soma a FE? | 68G-BI6 GLE OST ¥ L6¢ Leg 899 Se ICE TF | COLPOCE Gr¥el @ OL8T 986 5 269'T 018'868 2 “OLGT ‘Arenas 48T Tl? “69ST 09 ISTE 83? | aE ORE Lee Bet 6g ‘poraysturm =| uLoJy payeadas yoy} Osh Toe‘gae'Le | soc‘ezo‘er | 620° 9 698T gte & -pe oq 03 Ayredorg 1e6'> S86 866 2 eq, jo yunowme 76 2 oyd 0} SB poyayUy) ee? | eLe‘CL6 c 6Fry | eee “Dare SHON EOTP 191 6L9 goe‘ece'lF | Tet‘Liser |) PETIT 2 8981 ore 6 -ufpy 10 suonned 9F1°H96 2 eee “pay Ayiqe -Ul JO SUOT}BIL[DIq I 2 | 99st “cc “c “ponsst sos Cr ‘ 6 3 ‘ 6, q LOST £63 |_youmng si0jqaqq 990% 109 62OLG' TF | 9E8'F6T'er | ae a 2 “LOST ; : OOSF peeoxe “Ly ‘deo poe Jo OT “998) 40u pIp ‘erearsnaxe “OGF 192A 9 “OTA BER 1fh5.¢ LO8t "G98T JO syqap axoyan | “S9gT ‘66°09 | “RASH ape 0GF wpan |. toy | -avax tA oy JO LZ ‘0ag| “Ivaoy, | . f “ $1997 Smo TAL % OGF 1040 @ i‘ ho on Bagg yoy Jepug ae A 63 F 8% of JWOULdpN) UI oy pang | «. ae tenia 3 “MOV Jo 9% “dag 0 oy sapug gapug, Jo JOV Jap "HALSNIAISTAL szun09 ‘ALTIVUINGy bade ania meas Tess *x0LaNUANVE 'gasVO ALINDT “‘SLNQOWY *‘SLNIVIS RIND‘) uodi INAS sasavg On County Courts. 47 When the County Courts were established, in 1846, the district of each Court was generally in extent the same with that of the Poor Law Unions ; but as time has shown the necessity of changes they have been made. The Judicature Commissioners propose that where the business of the existing County Courts is small, the holding of them ought to be altogether discontinued. This ought not to be done, but some small Courts might be held only four times in a year, though if an important case, namely, when delay would cause serious pecuniary loss, or when testimony might be lost, or the thing itself sued for might be lost, it should be notified to the Judge and he might hear it at an early day or in an adjoining district. Courts are held usually monthly, and at many places on as many days in the month as the business demands. In some places where business is small they are held on alternate months. Mr Caillard, one of the Judges, says :—‘“ Speaking from my experience and local knowledge, I do not see how any of my Courts could well be transferred from my Circuit to that of any of my adjoining colleagues, nor how any of theirs could well be transferred tome. As Judge, I travel, I believe not less than 3,500 miles a year. I have twelve Courts, seven monthly and five bi-monthly, in my Circuit. Of the ‘monthly’ Courts, Bath requires my attendance 80 days in the year, at least, and will probably require more, even if the jurisdiction is not increased. In considering the work of the provincial Judges the TRAVELLING should not be forgotten. True it is that the sittings are occasionally short and at some of the smaller Courts are even generally so; but (taking the Circuit throughout) the sittings are not unfrequently very long and fatiguing, and if the time taken up in travelling be added to the time occupied in Court it will be very generally found that the Judge’s duties have extended over many hours on each Court day. I do not in the least complain of the travelling, notwithstanding its serious ‘wear and tear,’ because it is a great saving of expense and time to the suitors that so far as fairly practicable the one individual, the Judge, and not the many, the suitors, witnesses, and others, should travel. It need scarcely be added that the work of the Judge is not confined to his Court days.” These opinions of a learned and most honourable man intent on the careful performance of his duty are of the highest value. Mr Edwin Patchett, the Registrar of the County Court of Nottingham, says: ‘Even in the smallest Court, as at present held, the people look up to it asa home at which to obtain justice. I think it would be a great hardship to send any suitor to a great distance to obtain a hearing when other suitors have their remedy at home. Iam aware some little inconvenience is occasionally felt by the Judge; but I think it is more than counterbalanced by the convenience of suitors” [p. 96]. 48 On County Courts. There can be no doubt that it would be a serious inconvenience to close the Courts in remote districts and it would be a source of great injustice ; but there can be no objection to the proposal, that a Judge shall be empowered to try any particular case in any part of his circuit where from the number of witnesses it shall be deemed most convenient to all parties to have it heard [Report p. 15]; but the statement [R. p. 18] “that important matters are at present tried in small towns where there are no advocates and that the cost of bringing them specially from a distance more than outweighs the expense of taking parties and witnesses to the place where advocates exercise their profession,” must be regarded to apply to exccedingly rare cases [Q. 3,395]. The proposed change would, if adopted, injure very many suitors. A general “concentration of business ” is not needed on account of such very exceptional instances of seeking remote professional assistance. Plaintiffs and defendants too often yield to touting solicitations of aid and through ignorance exaggerate the importance of professional assistance when they need no assistance in order to obtain the most patient and careful hearing. “In vain would you give a man a tribunal close to his own house, if at the pleasure of an adversary who waited for nothing but an opportunity of distressing him, he were liable to be dragged away before a tribunal at the farther end of the county” [Bentham on Judicial Lstablishments, vol. 4. p. 328]. “The dimensions of Judi- cial Districts should be determined by the care taken to secure to suitors and evidence-holders the faculty of paying personal attendance at the Judicatories during the hours of business without sleeping elsewhere than at home” [Bentham, vol. 9, p. 474]. The consolidation of Circuits or the taking of suitors from their own homes to a Central Court of a Circuit, would be agreeable enough to an indolent Judge, but it would simply facilitate the plunder of suitors, and there can be no question that some Judges would wish to avoid travelling and to reside without disturbance near to a Central Court. [14.] “I do not think this (the trial of important business at a central place) at all to be desired,” said the late Mr Buair, J.C.C. : ‘the incovivenience and expense to the public would more than counterbalance the advantages. The system of central localities for the despatch of the more important contentious business would re-introduce many of the inconveniences which the County Court system was intended to remove; the expense of witnesses would be much increased ; portions of the lists would frequently be adjourned, and the suitors obliged in many cases to remain overnight in place of being able to return home. Under the present system, the day completing the day’s work is the rule; adjournment of a portion of the business the exception. Under the suggested arrangement, the contrary practice would I think prevail, with a great increase of costs and inconvenience, especially when the suitors are brought from a considerable distance. Mr Serjeant Petersdorff, J.C.C., made this reply : On County Courts. 49 [14.] “Tam satisfied that any consolidation of Circuits or cen- tralisation of any portion of the business would destroy one of the most valuable characteristics of the present system, the proximity of the Courts to the suitors and practitioners. The enormous increase of expense would deter all but opulent litigants from seeking justice. Even now a large number of suitors and their witnesses are often obliged to walk great distances to get to and from the Courts.” Mr Eastham, the Registrar at Clitheroe, says : {14.] “I think it would be a great evil to concentrate the business of several Court towns, for in my opinion one of the prin- cipal causes of the success of the County Court system has been the local and speedy administration of the law, and any other plan than local administration would be unsatisfactory, dilatory, and more expensive.” There is, also, this great advantage in the locality of action which is of very considerable importance, namely, that if documents are necessary, and are not produced, there is little inconvenience in the delay necessary to produce them—even if there is an adjourn- ment. It was not long since that the most grievous injustice occurred in a civil cause, on the Oxford Circuit, on account of the absence of a merely formal document. The Commissioners [p. 18] propose “that the Judges shall be relieved from going to the smaller places: whilst all cases involving difficult points of law, or which the parties or the Registrar think sufficiently important to be tried by the Judge, will be heard at one of the principal places at which the Judge will hold his Court.” The ordinary jurisdiction of the Courts was given by the 9 and 10 Vict., ch. 95 [August 22, 1846] in personal actions when the debt or damage claimed was not more than £20. By the 13 and 14 Vict. ch. 61 [August 14, 1850], this jurisdiction was extended to debt, damage or demand not exceeding £50. The Judicature Commissioners erred in their first Report [p. 8] in their statement that the County Courts had jurisdiction in Common Law cases up to £50 in contracts, and only to £10 in torts. The juris- diction in both cases extends to £50. The mistake evidently arose from a misreading of sec. 5 of the 30 and 31 Vict. ch. 142 [1867], relating to costs. By the Act of 1846, sec. 122, but now by the 19 and 2¢ Vict., ch. 108, sec. 50 [1856] the possession of tenements to the value of £50 may be recovered: a jurisdiction which has worked exceedingly well. By the 30 and 81 Vict., ch. 142, sec. 11 and 12 [1867] jurisdic- tion was given to try certain actions of ejectment and actions in a 50 On County Courts. which the title to corporeal or incorporeal hereditaments may come into question within certain limits, not exceeding £20 a-year. Under the provisions of the 19 and 20 Vict., ch. 108 [1856], sec. 66, actions of Replevin may be brought in these Courts. = By the 10 and 11 Vict., ch. 102, sec. 10 [July 22, 1847] jurisdic- tion in Insolvency was given to the Courts. In Angust, 1861, Bankruptcy jurisdiction was substituted for Insolvency. Under the Bankruptcy Act, 1869, sec. 66, the Judge of the County Court has the powers of a Judge of the High Court of Bankruptcy, and also has such power under the 28 and 29 Vict., ch. 99 [1865] giving Equity jurisdiction to the County Courts. Under the 31 and 82 Vict., ch. 71 [1860] Admiralty jurisdiction is exercised in 23 Courts. All these powers have from time to time been conferred through the desire of the public that the Courts should possess them, and there has been no demand or petition on the part of the public that they should be withdrawn. The duty of the Government is to aid the County Courts, to extend their powers, to simplify the procedure more and more, and to check the imposition of costs on suitors. Indirectly the Superior Courts will thus become reformed. No plaint was to be removable into any of the Superior Courts unless the debt or damage exceeded £5, and then only upon terms [9 and 10 Vict., ch. 95, sec. 90], but in 1856 actions for claims not exceeding £5 are made removable by certiorari if the Judge of a Superior Court deems it to be desirable the action should be tried in a Superior Court [19 and 20 Vict., ch. 108, sec. 38]. No attorney was to recover money for appearing unless the debt or damage claimed were more than forty shillings [sec. 91], nor to receive more than ten shillings if the claim were not for more than £5; nor to receive more than fifteen shillings in any case. Plaintiffs, on the taxation of costs, were not be allowed the expense of a bar- rister or attorney when the plaintiff recovered less than £5, nor defendants when less than £5 was claimed. The Judicature Commissioners [p. 19] suggest, that in cases not exceeding £5 no professional costs shall, as a rule, be allowed, there being, however, discretionary power given to a Judge to grant costs in special cases. By the Ist Vict., ch. 41 [1837], relating to Scot- land, jurisdiction was given to the Sheriff in cases under £8 6s, 8d., exclusive of expenses [ McGlashen on Sheriffs’ Courts, 1842, p. 84]; and by sec. 14, “no procurators, solicitors, nor any persons practising the law shall be allowed to appear or plead for any party without leave of the Court, or special cause shown, but the defender may appear by one of his family or such person as the Sheriff shall allow, On County Courts. 51 not being an officer of the Court.” In England, many poor people would be protected from needless expense through a similar provision. In 1867 [30 and 31 Vict., ch. 142, sec. 5], it was provided, that if in any action commenced in the Superior Courts of Record +the plaintiff recovered a sum not exceeding £20 in cases of contract, or £10 in cases of tort, he was not to recover any costs of suit unless on the certificate of a Judge of the Superior Court. The effect of this Act of 1867 on the business of the Superior Courts, as shown by the following figures, has been very remarkable, and the figures show the vast number of petty cases which were previously entered in the Superior Courts, and evidently, only, for the sake of costs. Years. Writs. Appearances. 1866 ; 1867 38,196 1868 28,747 1869 27,549 1870 23,577 1871 21,792 1872 21,467 Thus the number of writs was reduced in four years by 61,923, and the appearances by 16,404. But the Lord Mayor’s Court seems to have become a place of refuge, for in 1867 there were 6,084 actions in that Court, and in 1871 there were 15,464, or an increase of 9,380 actions: in 1872 there were 15,811. The increase of cases above £20 in the County Courts was—that in 1867 there were 8,822 such causes; and in 1871 there were 14,431, or an increase of 5,609. In 1872 there were 13,799 causes above £20. The late Lord Brougham very frequently asked why more cases above £20 were not taken to the County Courts. The only answer which could be given was, ‘‘ There were more costs obtainable elsewhere.” In the Parliamentary Paper No. 123, 1873, there are thirteen folio pages filled with lists of cases sent from the Superior Courts in 1872 for trial in the County Courts. The two highest cases in contract were for £250 and £400, and the damages in cases of tort, under section 10 of the Act of 1867, were chiefly laid in sums above £100 and extended to even £2,000 [p. 47]. The effect of the Act of 1867 is also shown in the reduced number of judgments in the Superior Courts : sua 7 ae 1866. 1871. 1872. udgments entered upon Judges’ Orders on default of services ........ souseeesan ete : ‘ GE08 oe? LOEB ae Ly OUY Judgments on affidavits of service............ 30,040 ... 16,428 ... 15,640 Judgments by default for plaintiffs ......... 4,482 ... 3,089 ... 3,293 87,690 ... 20,865 ... 20,250 52 On County Courts. oe 3 1870 ... 4,010 Bills taxed in the Court of eee 7 Pon aan aS 3,654 Exchequer .....:cceeeereeeeee 1869... 4,521 1872 ... 3,584 There have been no returns made of the number of bills taxed in the Courts of Q.B. or C.P. Before the Act of 1867 passed, it was a common practice to issuc from the Superior Courts writs for small amounts of money dne for goods sold under orders given to commercial travellers for wholesale articles. If an excess of an order was sent and the shop- keeper remonstrated, a writ came; if a man said the goods sent were not according to sample or order, a writ came. Such an abuse of the process of the law has been eheeked, and checked effectually, when the plaintiff has to sue in a County Court: not so when the terrors of the expenses of defence in a Local Court of Record pre- vail. The saving in eosts to suitors or defendants by the Act of 1867 cannot be estimated at less than £250,000 or even £300,000 in a year. / Beyond this gain in money are to be placed to the account of the County Courts, a saving of time and an avoidance of mental anxiety and trouble. All this affects traders whose daily business it is to make contracts and to receive and to give credit in connection with such contracts. It has been contended that the County Courts ought to have jurisdiction, exclusively of other Courts, in all cases under £50, leaving it to the Judge of the County Court to determine, on the application of a defendant, whether or not the cause shall be removed to a Superior Court, and making a refusal of such.an order a matter of appeal to a Judge at Chambers. One reason given why the County Court should have such exclusive jurisdiction is—“ because litigants are puppets in the hands of legal advisers, whose interest it is to choose the most expensive Court in which most costs are to be had.” Let us now take the various steps in a cause, and consider the changes proposed by the Judicature Commissioners. Plaintiffs may, and do in the vast majority of cases, enter their own plaints at County Court offices without tbe aid of an attorney. They cannot without such aid take proceedings against defendants in the Superior Courts with reasonable expectations of success [ Ante, p.18.] The Registrar of a Court ought to be of easy access, and ready to afford, without advising in a case, every assistance that a plaint shall be duly entered which it is proper to enter. It may be said, “What does this matter P—let a plaintiff seek professional aid.” It does matter. There were two Courts on different circuits, well On County Courts. 59 known to the writer: in one the work was done excellently well and there was no hesitation, on the part of the Registrar, to give all necessary aid to the suitors. The business there transacted was important. In another district of more trade and of a larger popu- lation, the business was of less importance. An attorney explained the reason of the difference thus :—“ People will not go to an office where they are not well attended to, and if the work is not done at the office they are afraid to come to us; this may explain the differ- ence of the business in the two districts.” In fact, in their fear of costs, they prefer the aid of a class called “accountants,” or “ debt collectors,” and they dislike suggestions which do not carry out their desire to enter a plaint in the County Court without any othor assistance than what they may reasonably expect in the County Court office. It is the reasonableness of this expectation which entitles professional men to be Registrars. Their aid is certainly enormously over-rated, if they are merely to perform work which any ordinary clerk could do and who would certainly devote himself contentedly and assiduously to the performance of. Some of the Registrars, where there is Admiralty and Bankruptcy business, have important work to perform and they well perform it. Mr Marshall, the Registrar of Leeds, says [Q. 938] “that his duty in issuing a plaint is purely and entirely mechanical, and that he resolutely declines to advise, or permit any clerk to advise, whether it is a proper case. It would be impossible to give any sort of infor- mation.’’—Mr Rotheray, a Commissioner, suggested that there would be some danger in giving advice as to evidence.—Mr Collins, of St Edmunds County Court, without fear of danger, says, ‘he does not advise as to particular witnesses to support a case, but if a poor man comes into the office, I give him every assistance I can.” Well done, Mr Collins! There are duties which are not mechanical. He also said : The clerks in the plaint office are lawyers’ clerks. They give certain advice, and if they refrained from giving that advice I think a great many causes would be entered that ought not. Persons would feel that some injustice was done them ; that it was a juggle rather than a fair trial; they would not understand why they were nonsuited for some informality. ‘‘I believe,” said Mr Clarke, ‘‘the popularity of the County Courts has arisen in a great measure from the Registrars being accessible, and giving more information than a mere salaried official generally does. Iam convinced that that has made them popular and made them work well.” The merits of a case need not be investigated, but applicants should be told what ‘‘ particulars” mean. In the Merthyr and other Courts if proper particulars are not filed the plaintiff is told this fact and that the summons will not be issued without proper articulars, unless he expressly desires to take his chance that the defendant will be satisfied without them. The practice at Birming- 54 On County Courts. ham was different [Q. 5,824], and adjournments in consequence of defective particulars were said to occur very often in that Court [Q. 8,838-9]. Since this was said there have been official changes in the Court. Mr Clarke, of Walsall County Court, also says :—‘ If a man came to enter a plaint on a builder’s contract, he should not feel justified in entering it without telling him it will require stamping. I could not allow him to go into Court and then ask him for £10 because it was not stamped.” Such conduct is proper and honourable. No more trouble on the part of a Registrar is required than that of the telegraph clerk who suggests that there are unnecessary words used and that the message, as tendered, is either unintelligible or in bad English. The conduct of the Judges of the Superior Courts on appeals in which the particulars in the cases before them have been rustically simple, is to be most highly commended, such as in the case of Weddon v. Sergeant, 18, L. T., R. 122 [1851], which was an action for work and labour, and Lee v. Riley, 12 L. T., R. 388, 34 L. J. 212, 11 Jur. 527 [1865], an important case, of which the particulars were: “one black horse, £22,” and in which case the damages claimed arose out of a trespass occasioned by the negligence of the defendant in not repairing fences whereby his horse strayed into the field of an adjoining occupier, the plaintiff, and kicked and killed the horse of the plaintiff. There is no formal pleading required in the County Courts. In five cases, viz.: set-off, infancy, coverture, statute of limitations, or bankruptcy, notice of defence should be given: but the Judge, as he is empowered to do, may permit any of these pleas to be offered at the hearing by consent, or adjourn to enable them to be filed [Rule 88]. On the part of plaintiff it is sufficient if he substantially states his demand or cause of complaint. Defendants know perfectly well what they meet in Court to contest, and the issue is clearly developed during the hearing. The absence of any formal answer or plea produces no difficulty whatever. If either were required to be formally stated, or to be stated in writing, hardly any defendant could con- duct his own defence. The experience of those who have tried for many years probably the largest number of important cases— including seaport cases—heard on the County Court Circuits, is, that no plea or answer need ever be formally given and that the absence of any plea or answer, and of any pretence of a settlement, preliminary to a hearing, of an issue, causes no difficulty or trouble whatever. At first some of the County Court Judges themselves favoured some kind of pleading [Law Times, March 2nd, 1852, p. 235]. Happily for the public the Judges of the Superior Courts have in no way sanctioned any alleged necessity for such a require- On County Courts. 55 ment. Several years since some advocates before County Courts pretended to be puzzled because no pleas were filed, but being com- pelled to go on with the case their affected puzzlement disappeared in a few minutes and the cross-examination of the first witness showed that it never existed. There is one case relating to a bill of exchange [Saul v. Jones, 1858, 28 L. J., 38 Q. B.], where one of the Judges thought it would be advisable there should have been some pleas. The facility was not observed with which from the local hearing where the cause of action occurred all the difficulties which arose were removed. Even ia the Superior Courts seven pleas in one case failed to secure that justice to a defendant which an eighth plea would have given him [Holmes v. Bagge, 17 Jurist, 1,095.] When pleas are offered to the Judge of a County Court they may be declined and the attorney may be requested to omit any charge for them in his bill of costs. If the demand exceeds forty shillings there must be delivered particulars—namely, a bill of the goods sold with the prices or specific charges similar to an invoice; or a settled account showing the amount of the debt when the last payment was made, the date of it, the amount then paid, and the balance due; or if a bill of exchange or promissory note is sued on, a copy of it; or an untechnical statement of any claim or demand. In general itis not from pleadings that the information a man stands in need of for the support of a just cause is obtained, Whence, then, is it obtained’? From the previous transactions between the parties. The case is comparatively rare in which, before the suit begins, the defendant is not pretty well informed what it is the plaintiff wants of him, and on what grounds it is that he demands it ; so, on the other hand, the plaintiff, on what grounds it is [if on any] the defendant means to dispute it. [bentham’s Works, vol. 7, p. 279. ] “‘T earnestly deprecate the introduction of any system of written pleading, or of any other written notices of defence than what are now required. Written pleading is wholly unnecessary for the purpose of defining the issue in dispute, because where the facts relied on by either side are not known to the opposite side (which is rare indeed), and the case made by one side comes as a surprise on the other, the Court has full power to prevent injustice being done, by allowing evidence to be called in reply, or the cause to be adjourned, or for further evidence, if necessary. In 99 cases out of 100 the Judge learns the issue as soon as the case is opened. In the hundredth case, he discovers it long before the plaintiff's case is concluded.” [Judge Herbert, J.C.C.] [4979]. Mr Justice Quain: “ Practically you see no inconvenience from having the same form of procedure for all Admiralty pro- ceedings as for Common Law proceedings P—Judge Herbert: None that I can see. The plaints in Admiralty are as simple as they 56 On County Courts. possibly can be.” ‘“ You have no pleadings either in Admiralty or Common Law ?—We have notice of defence.” ‘‘ But no pleadings P— No pleadings.” ‘‘ You have found no practical inconvenience from that, have you ?—None in the least. I cannot say that I have had sufficient practice in Admiralty proceedings to answer the question satisfactorily ; they have only been in operation now for a very limited time, and perhaps I have one suita month.” [In 1872 there were 60 Admiralty cases on Judge Herbert’s Circuit and no appeal]. “Tn all those suits that have come before you, you have found no practical difficulty from having no pleadings P—Not the slightest.” “ You find also that it very considerably diminishes the expense, as I gather from your answers, having no pleadings ?—Yes, I have no doubt of it. I have never in any suit, either in Common Law, Equity, or Admiralty, been embarrassed by the want of pleadings.” Chairman : “And you have been a Judge from the commencement ?— I was appointed in March, 1847.” “The practice and procedure of County Courts under the rules framed by the Judges isas simple and perfect as it well can be. Except in a few cases, the suitors have not recourse to, nor is there necessity for professional advice, the plaintiffs and defendants conduct their own cases, they understand the practice, and are satisfied with the justice administered. The taking of undisputed cases by the Registrars is particularly popular, and a saving of much time to suitors.” [Mr Walker, Reg. C.C., Dudley. ] Mr G. Lake Russell, Judge on Circuit 42, whose evidence on many points is of great value, and throughout instructive, states that—‘‘ The mode of procedure and practice in County Courts on the Common Law side is now well established and thoroughly understood, and has worked well; perhaps in not one in 50 cases is the summons taken out by a professional man; the party himself takes it out without the expense of the professional aid ; and, what- ever changes may be thought wise, I strongly deprecate any step which would involve an interference with that mode of procedure and practice. And I think that there should be the same mode of procedure in Equity. That this is practicable and not difficult, I have endeavoured to show. The present mode of pleading in County Courts of ‘summons’ with ‘particulars’ where necessary, is well understood by suitors and attornies throughout the country, and has worked admirably, and I think that, excellent as are the recommen- dations contained in the report of the Commissions of March 25th, 1869, for the establishment of one simple system of pleading for all cases, that should be confined to the Superior Courts, leaving wholly undisturbed the system in County Courts.” Mr Serjeant Petersdorff, J.C.C., says: ‘I cannot abstain from adding that I am convinced any material alteration in a system with On County Courts. 57 which the suitors are now perfectly familiar and appreciate, and every year more extensively avail themselves, should be sparingly made. The County Courts are essentially the poor man’s Court; to embarrass him with technical requirements, and expose him to motions and appeals, would not only exclude him from the justice he now without difficulty obtains, but give to an opulent opponent an advantage which wealth, &c., should not possess between litigants.” And the late Mr John Arthur Johnes, J.C.C., said: ‘“ Nothing can be more erroneous than the idea that the County Courts are governed by crude and imperfect rules that can be lightly meddled with. The jurisdiction possesses an admirable system of procedure and practice,. which has been progressively matured by men of great eminence and ability, including its founder, Lord Cottenham, and his able coadjutor, Mr Bethune, whose plans have been progres- sively improved by the Chancellors who have succeeded him, aided by Committees of County Court Judges and by officials of talent and experience, such as Mr H. Nicol.” The next matter to notice is the Payment or Fans: 1. The fees payable on entering a plaint are one shilling in each pound up to £20, or five per cent. If the sum claimed exceeds £20, the fee is twenty shillings, without further increase in the pound, e.g., for £50 the fee is twenty shillings, there being no increase between £20 and £50. 2. When the demand exceeds forty shillings, there is an additional fee of simply one shilling, and there is also an additional fee of one shilling for each defendant above three. 3. On every judgment by consent, under the C.C. Acts, 1850, secs. 8 and 9, or by default, under C. C. Act, 1856, sec. 28, or C.C. Act, 1867, sec. 2, the fee is one shilling in the pound. 4. If a case is heard, there is a hearing fee of two shillings in the pound, or ten per cent. [Treasury Order, Dec. 30, 1867]. If the sum exceeds £20, the fee on “hearing” is forty shillings, without further increase on sums between £20 and £50. These fees are paid in the first instance by the plaintiff and form part of a judgment debt payable by a defendant. When a defendant admits a demand, one-half of the fee payable for “hearing,” namely, the half of two shillings in the pound, or one shilling m the pound, is remitted, and there ought to be the same remission of fees whenever the defendant fails to appear and dispute the debt. The fee paid on entering a plaint includes the expense of serving the summons in any part of England and Wales. The summons is ordi- narily made returnable on the next Court day. By the leave of the Court or Registrar, it may be made returnable at any Court to be held within three months after the date of the plaint, which date is H 58 On County Courts. also the date of the summons. The summons in a home district, that is, where the Court is held, in order to insure its service, should be delivered to the bailiff twelve clear days before the day fixed for hearing. If served in a foreign district, that is, beyond the home district, it should be delivered to the bailiff fifteen clear days before the day fixed for hearing. There must always be at least ten clear days between the service of the summons and the hearing of the cause. Buta summons may be issued at any time before the return day, if the plaintiff, on affidavit, shows the Registrar that the defendant is about to remove out of the ordinary jurisdiction of the Court. Ordinarily, a case may be heard on the 11th, or any later day after the summons is served. If the Judge thinks proper to make an order for immediate payment, execution, in case of non-payment, may, at once after the order is made, be issued. By section 45 of the C. C. Act, 1866, the Judge must make an order for payment forthwith, or within fourteen days, if the amount, exclusive of costs, exceeds £20, unless a consent is given of his own accord by the plaintiff, to receive the debt by instalments, that is, without the direct assent of the plaintiff’, the Judge cannot make an order to pay the debt by instalments when the debt exceeds £20. By the County Court Act, 1856, section 28, when the debt exceeds £20, judgment—after personal service of the defendant twelve clear days before the return of the summons—may be obtained by default, unless the defendant gives six clear days’ notice of his intention to defend. A similar provision is contained in the C. C. Act, 1867, sec. 2 [30 and 31 Vict., ch. 142], when the action relates to the price or value of goods or chattels which, or some part of which, were sold or delivered to the defendant in the way of his trade, profession or calling. This applies to cases under £20—as well as above that sum, and under £50. As regards actions in the Superior Courts, by Rule 1, H. T., 1823, when a writ of summons is endorsed in the special form mentioned in sec. 27, C.L. P. A., 1852, the following are the amounts which may be indorsed by the plaintiff’s attorney or agent, upon the writ, for costs, and to include mileage of the service. In actions above £20: Intowncases ....... .838 8 0 In county or agency cases . . . . 4 0 0 In actions under £20: Intowncases . . ..... .&214 0 In county and agoncy cases. . . . 8 2 O [Archibuld’s Practice, Ed. 1862, p. 171.] tu the County Court tho summons and service together can in On County Courts. 59 no case exceed one shilling in the pound, and on a plaint for £20 the charge would be 20s., and not as above, £3 8s. or £4. In all cases above £20 the charge remains twenty shillings, and there is no increase; the service being effected by the bailiffs of the Court. There is no difficulty in having the service made by a special bailiff if necessary. But the Commissioners, including Judges, Queen’s Counsel, a County Court Judge, and three Attorneys, namely, Messrs Hollams, Lowndes and Bateson, have made this statement in their Report [page 20], namely: “ That it is not wncommon for parties to com- mence proceedings in a Superior Court, owing to the circumstance that the first steps in an action in the Superior Court cost less than those in the County Court. If the County Courts become merged in the High Court, it will not be tolerated that a plaintiff in the inferior branch of the Court should, on entering his plaint for £20, have to pay £1 Is. as a Court fee, while his neighbour will only pay 5s. for his writ for £2,000 in the Superior Court. It is explained in the evidence [page 7] that five shillings is paid for the writ only. The guinea paid in the County Court is for the summons and the service of it in any part of England and Wales; but a guinea is not payable unless £20 and more is sued for. Up to that amount the summons and the service is one shilling in each pound, or five per cent. The late Mr H. Coppock, solicitor, Registrar of the Stockport Court, put a case thus [page 89]: “One A claims a debt against B which is above £20, and goes to his attorney, who issues a writ from the Superior Court. This writ is endorsed £2 2s. or upwards. B thinks the claim unjust, and takes a copy of the writ to his attorney, who requires at least £5 to putin anappearance. B finds that, with the costs paid and a trial which will cost £50 to £100 to each side, it will be wise to pay the alleged debt.” Before a local tribunal this could not occur, and the attorney could be directly spoken to in reference to his conduct of the cause. In London he is hidden in the crowd; in country towns the maintenance of character cannot be disregarded; and respectable attorneys desire improper conduct to be noticed in order to protect the honour of their own profession. The following are taken from writs of summonses from the Superior Courts, issued before the Act of 1867 passed, and served by one attorney ; y y Fees payable in County Court for plaint and service of Amount of Debt. Endorsed Costs. pimamoia for the Gari amount of debt, £s. da. £8, d. £8. d, 411 9 2 0 0 0 6 0 6 8 8 118 0 0 8 0 78 2 115 0 0 9 0 60 On County Courts. Fees payable in County Court Amount of Debt. Endorsed Costs. for plaint and service of summons for the same amount of debt. £3 d. £8 d £3. d. 810 6 2 2 0 010 0 7 @ 2 210 0 0 8 0 3814 1 2 6 0 0 5 0 6 0 0 20 0 07 0 813 0 2 6 0 010 O 29 1 110 0 0 4 0 4 5 0 118 0 0 6 0 38.6 7 110 0 0 6 8 40 0 118 0 05 0 In the last four cases, the plaintiff and defendant lived less than three miles from each other. These endorsements are taken from a very long list of similar services of writs and of similar charges for small amounts, effected through the agency of one office. The Report expresses a most grievous misrepresentation of facts in this matter apparently in order to justify hostility to the County Courts. How was it that a County Court Judge signed the Report P Did not the three attorneys on the Commission know that endorsed costs meant costs of service and not simply the costs of the writ? Were they so careless or prejudiced as not to have understood why there was a contest respecting the service of writs or summonses by attorneys and services by the officers of the County Courts ? It will be hereafter shown, that the fees paid are expended in those services for plaintiffs which plaintiffs would inevitably have to pay for whether the Government collected the money and paid for the services or not. The Judicature Commissioners spoke of these fees as if they were part of the money collected through the imposi- tion of general taxes, and as though suitors would not have to pay for the services if the fees were not paid. The same opinion seems to have been entertained by those members of the Select Committee on the Civil Service Estimates Committee, who are especially hostile to the County Courts. Of course, if these gentlemen secured the abolition of Courts of Law they would accomplish the abolition of fees: and they cannot perceive that in their successes they would extinguish the happiness caused by public security. The summons being prepared, it is issued by the Registrar to the High Bailiff to get it served upon the defendant. The Com- missioners say: “‘ Complaints, it is said, are made in reference to the Srxvice or Process, which under existing arrangements must be effected by the Bailiffs of the Court, We think that parties should be relieved from this obligation and should be at liberty to serve their own process in the manner and according to the practice which prevails in the Superior Courts. The service should, as in the On County Courts. 61 Superior Courts of common law, be required to be personal, unless under an order requiring substituted service.” It is impossible to believe that the Commissioners could have comprehended the effect of this proposal. Do they understand what is meant by “ plaintiffs having to serve their summonses according to the practice of the Superior Courts,” which have no official process servers under the instant control of the Judges of those CourtsP All judgment summonses must be personally served. The difficulty of personal service is exceedingly great in very numerous cases; but when a man’s liberty may be affected, it is right that, beyond all doubt, it should be shown that he has per- sonal knowledge of the step about to be taken against him. In all other cases the service need not be personal and the rules of the County Court under which service, not personal, takes place have been perfectly satisfactory. The millions of cases entered in the last twenty-six years, numbering 18,200,811 and for the sum of £48,794,746, afford overwhelming testimony of the efficiency and sufficiency of the present system of service. What has caused insensibility to such evidence on the part of the Commissioners ? If imprisonment for debt could, as until lately, be imposed on a debtor by the mere act of the creditor, after judgment obtained, there would be the strongest reason why every action should be commenced by personal service of the summons. But imprisonment for debt in the County Courts has always been a judicial act, after personal service of the judgment summons. It has become such in the Superior Courts under “The Debtors’ Act, 1869,” when a judgment of the Superior Court does not exceed £50. Instead of changing the practice in the County Court there ought to be a change in the practice of the Superior Courts. But in the County Courts, after judgment is given, the further to secure notice of the proceedings to the defendant, orders for payment are sent by post to the defendant. [Rule 140.] Nor is this all. Section 80 of the C. C. Act, 1846, especially authorises a re-hearing upon sufficient excuse of absence even when there appears to have been due proof of the service of the summons. One County Court Judge, certainly, who was appointed in March, 1869, and wrote his opinion in December, 1869, namely, Mr John A. Russell [Manchester and Salford County Courts], J.C.C., stated, that “ nothing can be more loose and unsatisfactory than the mode of serving summonses ”’— “and that it is by no means uncommon for a defendant to be brought up on a judgment summons who has had no notice whatever of the original plaint.” Did not the defendant know of the debt and of the judgment? If he did not, then, of course, there would be no committal. The defendant would be protected and he would suffer no harm. But plaintiffs do not wish to lose the value of their 62 On County Courts. goods, and it is their interest that husbands should know of all dealings with their wives. This will be presently demonstrated. The wife has no interest to suppress an original summons when the husband knows of the dealings. Very lately, at Aberdare, there was a denial of the service of the original summons, on the hearing of the judgment summons, and yet it was very satisfactorily proved that the denial was untruthful. The efficiency of the service of summonses in Wales, where so many defendants have the same surnames, is perfectly wonderful, and if there is a complaint of either wrong service or non-service, it is at once explained or adjourned for investigation. A Judge who had only eight months’ experience may have been mistaken, or may have been imposed on bydefendants. Mr 8. Kay, Registrar of the Manchester County Courts, also states [p. 89] “ that his experience is that in numbers of cases where goods have been sold by drapers and others to the wives of defendants, the husbands have known nothing about the original summons until they have been brought before the Court on judgment summonses.” In what way does the Judge act in such cases? Are there numbers of cases in which wives in Manchester are disloyal to their husbands, or the husbands deficient in sight? Ought the general law to be altered because there may have been some such cases out of millions of cases in which nothing of the kind occurred P What questions were asked when the cases were heard and the debts proved ? There are honest wives who can only with difficulty induce their drunken hus- bands to acknowledge necessary debts incurred even for the food of their children. Does not, also, the alleged silence of the wife respecting the service of a summons occur only when there are no goods liable to be seized in execution ? Personal service as a rule would require a great increase in the staff of bailiffs, its necessity would delay the hearing of many hundreds of causes, and the expense of service would be greatly increased. If in any case there has been a mistake or any error, or the wrong person has been served, or execution without any service of the original summons, or insufficient service under the present Rules—there is ample opportunity offered to defendants to obtain assistance in the Registrar’s office, in order to apply to the Court and correctly to ascertain the facts and to remedy any evil. The Judge of a County Court can always be applied to without expense or professional interference when any complaint of official irregularity is suggested, and no Judge would go injuré his own authority, or do s0 unjust an act as to suppress it. That this is so is among the advantages of a domestic tribunal. The Judicature Commissioners propounded this question: [29]. Ought the process of the Court to be served exclusively On County Courts. 63 by the officers of the Court, or by the suitors, or their attorneys, or persons employed by them P “The summons ought not to be served by suitors or their attorneys unless the Court is satisfied they cannot be served by the regular bailiffs of the Court.” [Mr Stapylton, J.C.C.] “The service of process on which the jurisdiction of the Courts mainly depends, ought to be made exclusively by the responsible officers of the Courts. I can speak on this point from experience. For some years before the passing of the County Court Act, 1846, I acted as assessor to the Sheriffs of Lancashire, and presided over the County Court. The suits were conducted by attorneys who employed their own bailiffs to serve process and very great difficulties were experienced in acting on the proof of services so effected.” [Mr Hulton, J.C.C.] So much for alleged excellence of personal service ! “Great injustice may be done, and much useless expense incurred, by the parties or non-professional persons serving process. It should only be served by the officers of the Court or attorneys.” [Mr Serjeant Petersdorf’, J.C.C.] “ For uniformity of practice, I would require all process to be served by the officers of the Court; but if the attorney or plaintiff wished, for special reasons, to serve the process, he should be permitted to do so on satisfying the Registrar of some sufficient ground for the application, but the costs should be the same in either case. The Court is very often left in the dark as to what is done with the summons when given to plaintiff or his solicitor for service and the suit is kept open until Registrar and clerks have forgotten all about it, which gives unnecessary trouble and creates uncer- tainty.” [Ir James Wason, Registrar at Birkenhead]. “JT am strongly of opinion that the service ought to be by the officers of the Court. I think they usually use all diligence, and that the present system works well and much more economically than if solicitors had the service.” [Mr M. H. Rankin, Registrar at Halifax]. ‘“‘The process ought to be served by the officers of the Court, if otherwise it would get into the hands of the “touts” that hang about the Court, who are under no control, and who would profess to prove service that was never effected and receive money from the debtor under pretence of being officers of the Court.” [JM?r Geo. S. Watson, Registrar at Oldbury]. The late Mr Stansfeld, J.C.C. [formerly a solicitor] was also of opinion that there should be no increase in the cost of service, made under the immediate direction of a plaintiff or his attorney, when the officers of the Court are not employed to serve summonses. [20, 21]. “Ithink, on principle, and in accordance with the scheme of the original County Court Act [which was framed for 64 On County Courts. poor and ignorant people], the process of the Court ought to be served by its officers, and ought not, except on rare occasions, to be entrusted to the hands of suitors or their attorneys or the clerks of either. Asa rule, I should say that service would seldom be regu- larly effected by parties, or their agents, if the office of process server of the County Courts were to be abolished. In the insulated cases under the New Act I see no great objection to the parties being allowed to serve but in practice J do not believe they often wish to do so. In some cases, and especially in judgment summonses, the defendants may be more easily found by the plaintiffs than by the officer, and leave is frequently given to them to serve as speciul bailiffs.” [Mr Dasent, J.C.C.] The evidence in favour of continuing the service of summonses by officers of the Court, is that of most disinterested and experienced persons: yet the Commissioners have disregarded it and propose that every person who takes out a summons may, without any special reason, engage some person to serve it. “Is it not a great boon,” it was asked, to an ordinary rustic [why not to everybody ?] “that the service of the writ should be effected by some one else than himself if it is to be taken some half-dozen miles for service.” Mr Brandon replied, “If it is that distance it is so, but in the locality itself the attorneys do not like it,” and silly reasons are given for the dislike. Mr Hollams, one of the Judicature Commissioners, states, “ that an important change would be to allow parties to serve their own process” [page 132]. If this means that service is not to be by officers of the Court as at present, the costs that would result would be great; the hearing of very numerous cases would be preceded by dis- putes respecting the service ; a host of process servers similar to that which the County Courts dispersed and got rid of, will be brought into existence ; every trader will have to provide his own man to serve his summonses at infinite trouble to himself, and at great additional expense. The employment by tradesmen of needy attorneys in small cases would extensively become a necessity and professional costs would be increased while the misconduct of uncontrolled process servers and their employers will bring disrepute on the Courts. How could poor plaintiffs pay the cost of serving summonses in their own cases, or overcome the difficulties a service occasions ? They had far better abandon their claims than incur the loss of time and of money which would be imposed on them. The Committee of County Court Judges were strongly of opinion that for sums not exceeding £5, the service should be as at present by an officer of the Court and that in cases above £5 the plaintiff should have the option to leave the service of process to the officers of the Court, or make the service by himself or his attorney, or some person in On County Courts. 65 their permanent and exclusive employ. But £5 is too low a sum at which to exclude the agency of attorneys in the service of a summons except on some very special ground. Mr Leech, solicitor, and late mayor of Derby, distinctly states “that personal service in the first instance would be impracticable.” [3,726.] There can be no doubt it would be the result of ignorance, or of folly, or corruption to require it. Mr J. A. Russell, J.C.C., stated that a third of the number of judgment summonses, all of which are necessarily and by law required to be PERSONALLY served, are in his Court marked “ not served.” [I.D.C., 4,841.] This arises from the great difficulty of finding men at home. At present the fee of five per cent., or one shilling in the pound paid on the entry of a plaint, includes the expense of service. Cases of service needing the aid of other than the bailiffs of the Court, should be regarded to be exceptional and as requiring special pre- caution to insure service. If this is not the case, service otherwise than by the officers of the Court, means simply power to plunder, and such a power should be suppressed. By the County Court Act, 1867, sec. 2, when an action is brought for the price or value of goods sold or delivered to the defendant, to be dealt with in his way of trade, profession, or calling, the plaintiff may have a summons personally served on the defendant by the bailiff of tbe Court, or at the option of the plaintiff, by the plaintiff, his attorney, or some clerk or servant in the permanent employ of the plaintiff or his attorney twelve days before the return day, and if the defendant does not give notice of defence six clear days before the return day, then judgment may be signed by default. This provision was passed to assist wholesale houses to recover payment on account of goods sold by travellers. There is a Parliamentary Return [No. 292, July, 1872, p. 52] giving the number of services under this Act of 1867. The total number of services directed to be made by bailiffs of the County Courts in 1871, under section 2, was 29,698, and the number to be otherwise served was 6,326. The largest number served otherwise than by bailiffs of the Court was on Circuits containing these towns: Wolverhampton . 1,121 leeds. . . . . 3818 Birmingham . . 990 Whitechapel . . 310 Bradford . . . 480 Sheffield. . . . 255 Nottingham. . . 170 Bristol . . . . 165 The largest number of services of summonses in Circuit districts made by bailiffs of County Courts when parties themselves might, by their own agents, have effected services, was: I 66 On County Courts. Leeds ... . 2,940 Wolverhampton . 858 Birmingham . . 1,916 Bradford. . . . 745 Bristol . . . . 1,688 Whitechapel . . 666 Southwark . . . 1,277 Sheffield. . . . 648 Dewsbury . . . 942 Nottingham. . . 890 The Commissioners were told, that there was a general desire on the part of plaintiffs to have the services of summonses in their own hands—but the word “ plaintiff” was not defined. The returns do not sustain this opinion as regards THs puBLic. This alone affords sufficient evidence in favour of continuing the present system of services in all other cases. The Government does not gratuitously to the parties, or out of general taxation, pay for “ services,” but the fee paid by suitors on entering a plaint or issuing a summons is paid for this work being performed effectively and on the cheapest terms. Suitors are thus protected from extortionate charges which might otherwise and frequently are made upon them when the necessary work of serving summonses or processes is done. There could be no saving of money to suitors or to the public if County Court bailiffs did not make the services. If the fee now paid were with- drawn plaintiffs must pay their own process-servers, and the cost would be much more than that covered by the fee. If the fee were continued and the work were not done by officials, plaintiffs would be taxed for work paid for and not done, and yet would have to pay their own agents to do the work. They would be doubly taxed on the same account. The Judicature Commissioners, and certain ill-informed M.P.’s and others, have spoken of the charges of bailiffs as though the work done by them was not inevitable and necessary work, and as though they were not paid out of money specially appropriated to pay for the work when levied in the shape of fees. The appropriation of the money is made the moment it is paid, notwithstanding that the money passes into the power of the Government and is after- wards included in a vote of the House of Commons. It is a suitors’ fund paid for an expressed purpose, when paid, in order to be expended in the performance of certain necessary acts. The recommendation of the Judicature Commissioners, if adopted, will not save a farthing to suitors or to the public, and the fee could not honestly be levied if the work, in respect of which it is avowedly paid, were not done. The withdrawal of the fee, and the non- performance of the work by officials, would impose increased charges on suitors, and involve them in great anxiety and trouble for which they are now exempt. Those who induced the Judicature Commissioners to recommend the change respecting “ services” were not stupid persons. They perfectly well understood the effect of On County Courts. 67 what they were doing, in proposing to renew those opportunities of legal plunder from which legislation respecting County Courts has for twenty-six years protected suitors. If the recommendation is acted on, another law job, of great magnitude and of great evil to many thousand persons, will be accomplished The apparent duty of the Judicature Commissioners is to revise their Second Report without delay. In 1866 there were 133,160 writs issued from the Superior Courts. The average indorsed costs on service may be taken to have been £3 10s., or a total of £466,060; add to this £5 paid on each of the 38,410 “appearances”’ [ante, Mr Coppock’s evidence] in that year [£192,000], and we have £658,000, a sum of money which it will be presently shown should “ appal” Mr Harcourt, M.P. In 1872 the 63,926 writs issued will in the same manner give £223,741, and £107,335 for 21,467 ‘appearances,’ or a total of £331,076. The difference between the years 1866 and 1872 is £347,524. In the County Courts no “appearances” are entered, and the plaint fees pay for the service of summonses. The number of summonses issued in 1872 was 900,750. The economy of the County Court system is in the matter of the service of summonses apparent. We now come to the Hzarine or a Cast. Up to the year 1867 the Judge of the Court heard every case, whether defended or undefended. By the Act of 1867, sec. 16, in any action founded on contract, if the defendent does not appear either in person or by some one duly authorised on his behalf, and no sufficient excuse is given for his absence, the Registrar may, by leave of the Judge, on proof of the service of the summons, and of the debt being due, enter up judg- ment for the plaintiff, or make an order to pay by instalments, or enter up judgment of nonsuit or strike out, or adjourn a case, but power is given, even in these cases, to set aside the judgment or any execution, and to grant a new trial. The Registrar cannot act as a Deputy-Judge on any day the Judge does not sit at the Court. This is a very proper rule, as it secures the early hearing of small disputed cases and keeps the access to the Judge, on the part of all persons, in every case, FREE. The advantages of an arrangement of defended and undefended cases were anticipated by Bentham :— ‘A great majority,” said he, ‘‘of the whole number of suits do not require more than a few minutes each to hear and terminate: this is matter of expe- rience. Yet here and there a cause shall arise which to do justice to it requires more than as many days of uninterrupted attendance. Were no division established between simple and complex causes there might be a hun- dred sets of suitors with their respective witnesses all kept in a state of torment by one single cause.” { Works, vol. 7, p. 289. ] 68 On County Courts. The Commissioners do not say, that two rooms should be pro- vided for the sitting of the Judge and of the Registrar, at the same time; but they say that the Judge is “compelled to remain in the neighbourhood of the Court, wasting valuable time, unless there happens to be a second Court, while the Registrar is disposing of undefended cases” [ Report, p. 14, and Q. 6,279]. If two Judges of Assize found only one Court-room in an Assize town, would the proper inference be, that one of the two was “ wasting valuable time,” while the other was hearing civil or criminal cases? It might be so; but would it not be also said, that two rooms should be pro- vided in every Assize town? Nothing can be worse than the arrangements, construction and size of some of the Metropolitan County Courts. They seemed to be designed to prevent the presence of an audience in the discreditable absence of proper accommodation for the public. And is not this an answer to such remarks as those of Mr Burton [p. 438], who says that when he went into a County Court in London—“‘I felt myself in an inconsistent position, being mixed up with such a class of people as I found there.” Nor does he speak well of certain attorneys, for he says, “ My client was a man in a position to be represented respectably, and not by an attorney who would commit him to some absurd defence.” Mr Brandon, also, [p. 145] says: “It must be admitted, without casting any reflection upon the suitors, that suitors for a few shillings and their witnesses do not form a company in which an attorney or a merchant, likes to wait his turn for hearing.” Then what prevents the Corporation of the City of London providing proper Courts out of the excess over expenses of the law fees received in the City Courts? Mr Commissioner Hollams complains that “the tempera- ture of the Courts is disagreeable, and that some Courts are so crowded as to make it difficult for suitors to gain admission ” [p. 131]. Nothing offensive occurs wHen there is proper accommodation. At Cardiff, for example, the undefended cases are heard in one Court by Mr Langley, the Registrar, and the proceedings are orderly, regular, and inoffensive. In the adjoining Court, Judge Herbert takes the defended cases. In both Courts the scene is free from censure and the audience is more respectable than that at the Assizes. The most fastidious and delicate-minded London attorney could not reasonably object upon any account to what he may witness. The attorneys also who practise in the Court do “not commit their clients to absurd defences,” but conduct cases with very honourable ability. At page 281 of the Evidence there is printed a discussion on the hearing of cases by the Registrars, and certain difficulties are propounded. All the difficulties stated can be answered by saying: They would be non-existent, were there two rooms for the transaction of business, and also if some of the Judges On County Courts. 69 were to go twice in a month, after the interval of a week or more, to the same town. Where there is confined space and insufficient seats, it is the Government which is to blame in not providing proper accommodation for the public, and also, when it seeks to provide accommodation in not employing architects who can be persuaded that well-arranged rooms, an interior convenient to all classes and well ventilated are needed, and not ridiculous exteriors. “In each Judicatory,” said Bentham, “if, besides the Judge Principal, there be one or more Judge Deputes sitting at the same time, to each such Depute must of course be allotted a separate justice chamber during the same time”—“to be fitted up and stocked on the same principle and in the same manner as the Prin- cipal Justice chamber.’ [Works, vol. 9, p. 588.] All County Courts should be so constructed as to contain a reasonably large number of persons : “By publicity, the temple of justice adds to its other functions that of a school—a school of the highest order—where the most important branches of morality are enforced by the most impressive means; a theatre, in which the sports of the imagination give place to the most instructive exhibitions of real life. Sent by the self- regarding motive of curiosity, men imbibe, without intending it, and without being aware of it, a disposition which influences more or less by the social and tutelary motive the love of justice. Without effort on their part—without merit on the part of their respective Govern- ments—they learn the chief part of what they do learn of the state of the law on which their fate depends.” [Bentham.] Where there are two rooms, the Judge can commence his work by taking judgment summonses. A man ought not to be kept waiting when it is proposed to commit him. Then the small dis- puted cases sent in from the Registrar can be heard and, after these, contested cases may be keard in which advocates appear. No time is lost or wasted when the Judge hears small cases. Generally more than one day is needed in many Courts. A willing and honourable Judge and an intelligent Registrar can arrange the hearing of cases in which advocates are employed so as to cause the least incon- venience to the public. When the list of cases is gone through it is again called over. The immediate striking out of cases, if parties or witnesses are not all present, would inflict cruel hardship on suitors in loss of time and money to themselves and to their witnesses. Nothing can justify the injustice of such a course, though it may be an imitation of what is sometimes seen at the Assizes. Delay in any case is of no impor- tance to a Judge if there is another case ready for hearing, and the Judge has the right to arrange the course of the business before him and the order in which causes shall be heard when seeking the con- venience of suitors. 70 On County Courts. Mr Fortescue, J.C.C., states that: ‘‘In places where I have the advantage of two rooms, I have two lists made out, one of simple cases for goods sold and delivered, and money lent, which is taken before the Registrar in one of the rooms ; the other list comprises cases of replevin, trespass, negligence, breach of warranty, trover, detinue, work and labour, and rent, which is taken from me in the principal Court. Should any defendant state before the Registrar that he disputes the plaintiffs case, it is sent down to me and taken in due course. Should the parties fail to appear, the cases are called in both Courts.” “‘T don’t believe,” says Mr Stapylton, J.C.C., ‘‘that by the present prac- tice much time or expense are unnecessarily consumed by the suitors, espe- cially where there are two rooms, in one of which the Registrar hears undefended cases and in the other the Judge sits and disposes of defended cases and other matters which come before the Court.” Mr Skinner, J.C.C., stated: ‘‘During the last eleven years the business done in my Courts, take for instance Wolverhampton, has doubled in amount. That is a practical recognition by the people of the district of its usefulness as at present constituted. The freedom from written pleadings. the directness with which the rights of parties can be ascertained, and the rapidity with which the business is dispatched are no doubt the cause of this popularity. Adjournments are rare and only to enable parties to complete their cases. Postponements of cases to a future day, by reason of the press of business in the Court on the day first appointed, are also rare, and I do not remember a single instance in which a case postponed by the Court has been deferred beyond the second day appoined for its here Expedition and cheapness are an established result, and the forbearance from Appeals shows that the Court is accepted after the trial, as well as acceptable before.” Parties to actions in the County Courts may not only enter their own causes, but may conduct their own cases, having no pleadings to confuse them. They can do this by the exercise of ordinary intelligence without any fear of failure. Take this case as an illustration. A widow came as plaintiff before mein the Courtat Neath and the defendant was her own brother. She said she had intended to settle £60 on a child and that her brother had agreed to act as trustee. This being arranged at an attorney’s office she and her brother went to an hotel and thinking she had no further right to possess the money she gave the notes to her brother. She said that from that day and for some months up to the day she came before the Court he had denied receiving the money. She sued for £50, being compelled to abandon the balance in order to bring the case within the jurisdiction of the Court. The defendant denied the statement of his sister. He was assisted by a most able advo- cate, the late Mr Tripp, and some evidence was given to corroborate his denial. The widow had no one to assist her and she had no witness to call. No mere written report of what was said could have enabled any conclusion to be drawn. It would have appeared as simple affirmation and simple denial. If she had been compelled to have sued in the Local Court of Record at Salford, with its writ, declaration, pleas, inevitable jury, and 25 barristers for her neces- sary attorney to select from, what would have been her position ? On County Courts. 71 How much of her £60 would have come into her possession ? The manner in which the respective statements were made led the writer to be convinced that the demand was truthful. The defendant was ordered to pay the money sued for and the plaintiff was publicly directed to take out an immediate execution. At the next Court it was stated that on the afternoon of the day of hearing the defendant, pressed by the execution, had restored all the notes and money to the amount of £60. Before the County Courts were established where could justice have been thus inexpensively obtained? If the sister had gone to the Superior Courts she must have employed an attorney, a pleader and counsel, if she had had the means, and if not, she must have abandoned her claim. She spoke in the firm tones of truth and not after the manner of “lone women.” Access to the Court was open and she needed no hired tongue to assist her. Compare this course of proceeding with that in a cause sent down to Aberdare Court under an order of Mr Justice Mellor, pursuant to the provisions of the 19th and 20th Vict., ch. 108, sec. 26, namely, ‘The County Court Act, 1856.” The damages were “ pleader’s damages above £20,” that is, they were not truth- fully stated, but knowingly and grossly exaggerated, according to chamber usage. The real damage was under £13. The demand was simply on account of loss sustained in the late delivery of meat intended for a market. The writ to begin with was as a country case, probably endorsed with £4 as costs. The declaration filled three folio pages of close copy of 90 lines, in part describing the legal duties of carriers and set out four counts. The defendants filed eight pleas. There were also interrogatories filed. There was needless expense in every stage of the cause. In the County Court the cost of the summons in such a case and for service would have been fourteen shillings. The particulars would have been a bill of charges for goods damaged which even the butcher’s boy might have been competent to write out. In Scotland, also, the expenses may be very heavy when they ought to be moderate. A case was related by the sheriff-depute of Dundee to the Scotch Law Commissioners [p. 117], of ‘ uplifting ”’ money from a bank on the indorsement of bank receipts of money de- posited, the owner of the money being imbecile. There wasa “ judicial factor” appointed. The sum was £170; and this amount was expended in costs. A similar case, but more complex and curious in its facts was heard by the writer at Merthyr, on a plaint stating in avery few lines, and in simple informal words, the particulars of the demand. here was no issue prepared, nor was it necessary. The defendants and plaintiff knew the facts, the one as well as the other. The case occupied the greater part of a day. There might have been an 72 On County Courts. appeal: but there was none suggested. The costs were very moderate, and the defendant paid the plaintiffs costs and had to disgorge the money “ uplifted” on a bank deposit note. The Commissioners propose [R. 18] that the Registrars shall have primary jurisdiction to dispose of contentious small debt business. It is to be hoped that this will not be attempted. What are called “trivial cases” ought not to be sent into a corner when they are contested. They should be heard by the same Judge before whom cases of more value but not of more importance to the parties are heard and who it has been assumed cannot without “ waste of his time condescend to settle shilling disputes.” It is of the highest social and political importance that access to the Judge of the highest authority who can be reached shall hear the contests of poverty as well as the quarrels of the rich. The question was asked whether any mode can be suggested by which the contentious small debt business can be effectually separated from other contentious business so as to save expense or time to suitors. To this Mr Greene, J.C.C., made this honourable and excellent reply: ‘‘ As a County Court Judge I cannot draw any line between contentious small debt business and other contentious business, unless we are to have supplemental Courts. According to my experience the contentious small debt business requires on the whole the most vigilance and caution, and is undoubtedly very troublesome.” The writer himself made this reply: “I think the small debt business is not at all to be contemned, and that there is no reason to separate it from other contentious business. The Judges of the County Courts ought not to be relieved from hearing of such cases by any device. Poor people are protected by us. ‘hey know that they can be heard and they ought to find us ready to hear them whenever they have any occasion of discontent.” ‘* Should I decide a case,”’ said Mr Hubbersty, Registrar C.C., Wirksworth, ‘fin the absence of the defendant, and he afterwards appears and objects to the order, the Judge, if the plaintiff be present, re-hears the case, but if the plaintiff be absent, the judgment is suspended and an order is made for re-hearing at the next Court. In my opinion the non-contentious business cannot be better disposed of than at present. I am opposed to plaintiffs entering up judgment in small debt business if the defendants do not, within a limited time, enter an appearance or give notice of their intention to defend. As the defendants in these cases are generally their ‘own lawyers,’ they would never be made to understand the necessity, or would they even take the trouble to enter an appearance or give notice of their intention to defend, and were judg- ment entered up in their absence much injustice would often be done. I know many large wholesale tradesmen are anxious for such facilities, but I object to the principle. All contentious business, however small the amount, ought to be disposed of by the Judge. Great dissatisfaction would be created were it otherwise.” On County Courts. 73 ‘* All the contentious business,” said Mr R. Waller, Registrar C.C., Chester- field, ‘‘ must be taken by the Judge, and cannot, without injury to the reputa- tion of the Court, be deputed to the Registrars; for however clever, honest, and good intentioned the Registrars may be, and however honourably and ably they may discharge their duties, their decisions will never have the weight with the poor which those of the Judge have; the great object to be gained is to let the poor be satisfied that they have justice done them impartially, and by a ‘Judge’ with whom they are not too frequently brought into contact, and who cannot have heard anything of the case beforehand ; this is the secret of the success of the County Courts, and it must be adhered to. The poor in the con- tentious small debt business are as much entitled to be heard by the Judge himself as their richer neighbours; if they do not get this they will cease to have confidence in the Courts, without which the Courts cannot hold their position in the estimation of the people.” These most praiseworthy opinions ought to have stayed the hands of those who signed the Report. “T earnestly hope,’’ said Mr G. Lake Russell, J.C.C., “ that in any alteration in the jurisdiction or mode of procedure in County Courts, the original object of these Courts—of giving cheap and speedy justice to the poor man at his own door—will be carefully preserved. Persons not conversant with County Court business would probably be surprised at the large number of cases of de- mands for only a few shillings each, in which the plaintiff could not afford to go and take his witnesses even 25 or 30 miles, and in which, but for County Courts at their own doors, justice could not be obtained at all by the poor. For instance, cases of wages, work done, money lent, goods sold, and counterfeit coin (giving the wife of a poor man in change for his sovereign or half-sovereign on Saturday night a bad shilling, or florin, half-a-crown, or crown). And it must be recollected that there are, no doubt, numerous cases in which right is done without coming to the Court at all, because the eaistence of this cheap and speedy justice close at hand is well known.” ‘“T also earnestly hope that these small cases, when contested, will not be withdrawn from the Judge, or attempted to be dealt with except in open Court. The moral effect upon the people of a Court carrying on business in public, unfettered by technicahty, and using terms and language intelligible to the humblest, and enforcing truth, fair dealing, and good faith, can scarcely be overrated.” “In my opinion,”’ says Mr Hulton, J.C.C., “ every suitor, what- ever may be his demand, has a right to the attention of the Judge, and it would have a serious effect on the Court if the smaller claims were decided by an official inferior in position, however well qualified he might be.” Mr Kettle, J.C.C., said: “The Judge of the Superior Court, who is present, will be surprised to hear me say that people go to law about trespasses by poultry scratching up afew seeds in a neigh- bour’s garden. They go to law for breaking windows by accident ; K 74 On County Courts. trespass by pigs; and when we talk of torts it is often the veriest trifle, perhaps a neighbour’s quarrel about the use of some out- building to which they have a joint right, or some quarrel of a very trivial nature, such as magistrates at petty sessions are called upon to dispose of.” [Q. 3,404.] But why should there be surprise that such cases should be heard in the County Court? The late Mr J. Farquhar Fraser, J.C.C., and the able editor of Coke’s Reports, heard the case of Wyatt v. Lord St Leonards, which related to the impounding of certain ducks [ County Court Chronicle, 1854, pp.260 and 285]. His lordship had impounded five ducks and a drake, damage feasant, giving notice to the owner of the impounding so soon as he could discover him. Finally, he returned them without receiving compensation: his object in the seizure having been to prevent a frequent annoyance. Wyatt, the owner and a poulterer, living near Boyle farm, brought an action for £10 damages. The case was tried by a jury and thirty shillings damages were given. But Judge Fraser set aside the verdict, directed a nonsuit to be entered on the ground that Lord St Leonards had aright to impound the ducks. He also gave the defendant the costs of counsel [Mr Chitty], wit- nesses and attorney. The conduct of Lord St Leonards was perfectly correct, as might have been expected on the part of so distinguished a lawyer and so honourableaman. And why should not the gardens of poor people also be protected from the damage which fowls when trespassing may do? It is frequently not a trifle, though some per- sons might pooh-pooh such cases. The Judicature Commissioners say “that it is found in practice that some of the duties of the County Courts clash with others: that the smaller business is interfered with by the larger, and the larger by the smaller. There are other defects in the system” [R., p. 11]. This opinion is simply unintelligible. As every case is heard sepa- rately in what manner does one clash with another? How can it be a defect in a system that one case is more important than another and who determines the fact of relative importance? There may be bad arrangements in the conduct of business but this arises either from want of proper Court-rooms, or the neglect on the part of a Judge and his Registrar in not consulting the convenience of the public in the order of hearing causes, or in not appropriating a sufficient number of days to the convenient hearing of causes [Q. 6,380]. Circuit Ructsrrars.—The Right Hon. Mr Hunt, among several objectionable suggestions made by him [p. 170], proposed that the Registrars shall travel Circuit. “One Chief Registrar for the Circuit,” said he, “with the assistance either of his own clerks attending at the smaller towns one day a week, or of other professional men acting as his deputies On County Courts. 75 at those places, would in most cases be able to transact the whole of the business at a great reduction upon the present cost. It is in evidence that the substitution of Chief Registrars at every place for Deputy Registrars was more in the interest of the profession than the public.” [See Q. 3,382, 2,918, 2,641, 2,653, 2,655, and 2,608.] The best evidence would have been that of the few surviving Judges who had experience of the old practice. They were not asked their opinion on the subject, and the best evidence which was given on it was that 'of Mr Nicol [Q. 2,608] and Mr Oollins, Registrar at Bury St Edmunds, and they did not support the pro- posal. Others were asked their opinion who had known nothing of what had formerly occurred. That “the substitution of Chief Registrars was more in the interest of the profession than of the public” is a most grievous error. On Circuit 380 there was, until the passing of the 19 and 20 Vict., ch. 108 [1856], one Chief Registrar ; he employed in some places attorneys, and in some places clerks, to be his deputies, and beyond all doubt at the most modest cost to himself. He paid badly and there were in consequence defalcations, local scandals, and to himself personal loss. All the laborious and responsible work was done by his deputies, of course without superintendence. He received his salary for what they did in his absence, in their daily attendance at the office, in entering plaints, issuing processes, and receiving money. How could such an arrangement, though cheap, have been in the interest of the public? It was scandalous. The chief work of the Registrar was travelling from place to place and counting his own fees. A change was demanded in the interests of honour, and also to secure respec- tability and efficiency in the conduct of the business of the Courts, though undoubtedly some of the deputies were efficient and honourable men. The statement of Mr Collins is correct. By whatever name the resident official may be designated there must be a Registrar of each Court. The share of the profits made between many of the first appointed Registrars with the person who did all the real work was very objectionable. The Circuit Registrar was useless. The work done by him on Court days in entering the orders of the Judge might have been done by a boy. A Chief Superintending Registrar, who will work on low wages, and precede the Judge and hear certain cases, is merely appointing a Second Judge of no influence or authority, and hiding his position of Judge under the name of “ Chief Registrar.” Cannot the Jadges continue to do what honourable Judges have cheerfully done for twenty-six years? How much money is it expected will be saved through the price of a cheap deputy? Is there not a moral authority of great influence and goodness, which it is proposed to cast away, and which cannot be valued through the estimate of the imaginary saving P 76 On County Courts. JupemEnt By DEravit.—The Commissioners [p. 16] say: “ There has been a general concurrence of evidence in favour of extending the power to obtain judgment by default, im all cases exceeding £5, but there has been considerable difference of opinion among witnesses as to the expediency of extending it tothe classes of persons who are ordinarily defendants in the smaller cases.” This suggestion, if acted on, would simply cause the issue of a large number of instant executions, or the fraudulent hiding of goods on the receipt of asummons. There ought to be no judgment by default for sums under £10, and then only on personal service—the service of the summons being by an officer of the Court. Mr Kerr, Judge of the City of London Court, is of opinion that judgment under a default summons has become a great oppression. [Impr. for Debt Com., Q. 434.] The fact that so many attorney debt-collectors and travellers desire default summons for sums between £10 and £5 demonstrates what will be the defenceless position of numerous per- sons. The present system checks the incautious dealings of commercial travellers and ought not to be interfered with. Default summonses will supersede care in giving credit and confer great power to oppress. A traveller can attend to sell at a long distance from his employer, but if he has openly and fairly and without excess on an order, transacted his business, there is no reason why on his com- mercial Circuit he should not attend a County Court to prove debts and, by honest dealing only, exclude defence. The inconvenience of attending a Court on the part of traders is small, unless through the reduction of the number of Judges or disregard on the part of Registrars or of some Judges of the convenience of the public in their arrangements, too many causes are accumulated in too short a time for a quiet hearing without the inconvenient pressure of a crowd. A traveller professing to belong to a large establishment in London lately visited a town in Glamorganshire and produced an excellent sample of an article for which he obtained orders. There was sent from London an article regarded to be a mere cheat. Those who were duped refused to pay, and received in 1873 sum- monses from the Lord Mayor’s Court. All but one of the purchasers thought the cheaper course was to pay the demand into Court. This one attended the Court, and when the case was called on, there was Go appearance on the part of the plaintiff. An order was made for the defendant’s costs and an execution for them was taken out. The plaintiff was found to have taken the money out of Court paid by other defendants, and his residence was found to be an empty garret, and he himself had disappeared. Most extensive frauds on small tradesmen may be effected through default judgments. On County Courts. 77 Questions were asked by the Commissioners respecting Advocacy in the County Courts. Mr Stansfeld, J.C.C., stated ‘that the duties of advocate are efficiently discharged in general by solicitors. It would materially assist a Judge to have a regular Bar, but the busi- ness would not be disposed of with so much despatch.” Mr Rankin, of Halifax, was “of opinion that one solicitor ought to be permitted to employ another as an advocate. After ten years’ experience,” said he, “in a Court with nearly 7,000 plaints a year, I should say that attorney-advocates conduct their cases in Court with as much efficiency as barristers and get through them with three times the rapidity.” Mr Turner, J.C.C., does not think it would be right to give pre- audience to barristers. ‘The points in dispute are,” he thinks, “more easily ascertained from the statements of the parties them- selves. They admit matters not really in dispute, while counsel would say, ‘1 ADMIT NOTHING.’ ” By “ admitting nothing,” or, making no admissions, there is an increase of costs, needless witnesses, loss of time, and idle discourse. In many Courts, attorney-advocates at once state the real question in dispute, and admit all that is immaterial to its solution. This is true and honest advocacy and the sense of personal honour is not offended. Mr Fortescue, J.C.C., says: “A good Bar would be an advan- tage: a bad one a great evil.” The advantage of a Bar is great when led by their own sense of honour and refusing to be subject to the orders of a client, and an honourable attorney-advocate is always thus led and does not and cannot excuse himself by “ instruction ’’—the blinker of dishonour. Mr Yates, J.C.C.: “The class of solicitors who practise before me is composed wholly of men of the highest respectability.” Mr Greene, J.C.C.: “My Circuit is attended by a most respect- able body of practitioners.” Mr Stonor, J.C.C.: “ Throughout my Circuit the solicitors prac- tising before me are distinguished by their ability, fairness, and courtesy in the conduct of business.” Mr Blanshard, J.C.C.: “ The body of solicitors who practise in my Court is most respectable.” Mr G. Russell, J.C.C.: ‘The solicitors practising before me are, as a rule, the leading solicitors of the district, who have a taste or talent for advocacy.” O st sic omnes ! “We have all classes of solicitors from the highest to the lowest.” [Mr Knight, Reg. C.C., Bloomsbury.] This is also the case in Westminster Hall. In Glamorganshire Admiralty cases are conducted and discussed 78 On County Courts. by solicitor-advocates with great ability, and professional contests are generally courteous. Appsats.—In all cases above £20 there may, of right, be an Apprat [C0.C.A. 1850, sec. 14], and in all actions of ejectment, in all actions in which the title to corporeal or uncorporeal hereditaments comes into question. By leave there may be an appeal in all actions, whenever the Judge thinks an appeal to be reasonable and proper. [C.C. Act 1867, sec. 13]. By the 9 and 10 Vict., ch. 95, sec. 90 [1846], a case above £5 may be removed by certiorari, and by the 19 and 20 Vict., ch. 108, sec. 388 [1856] actions under £5 may be so removed. And a defendant in an action or contract exceeding £20, or of tort claiming £5, if he objects to the action being tried in a County Court, has power to obtain an order to stay the action in the County Court [C. C. Act 1856, ch. 108, sec. 39]. In Equity, Admiralty, and Bankruptcy there is a power to appeal, of right, that is, without the leave of the Judges, in all cases. There is every possible protection given to parties to secure them from judicial errors, and the Judges themselves afford further protection in giving written reasons for their judgments in cases which invite this evidence of care on their part. The County Courts Chronicle, the Law Times newspaper, and the Law Journal newspaper contain constant illus- trations of the labour taken to remove the doubts and correct the errors of educated and uneducated litigants. The County Court Judge has no power to alter, or to add to an appeal case, after it has been agreed to and signed by the parties or their attorneys [ Warner v. Riddiford, 4 C.B. 180; Welsh v. Mercer, L.RB.S. Exch. 71; Cawley v. Furnell, 20 L.J.R.197, 199; Thornewell v. Wigner, 40 L.J. Exch. 48. ] Orders to Stay. Certiorari. Appeals. TESS - saan aoe BL ae cee. tee DOR ae. ra ee SE 1859) - Gee. ieae! eae OR agg ates dee SUBD ieee tie, cece, SU VSGO! Case teow Geode Eee sen “aaan' QOS tna, cise Hey ER BCR. poe. gees eden DO Gall sates ean a2 sone aie 20 MSC9 cece) wat sans AR aes ose ae TST ae ses age 1. T8683) sa oes see (BM, eee ates een OB axe ges - aivd | 2D P864. ee coe xe SD ee ae ae «BBE ae ae ony 0 1865 aa ce ae DT ee oe oe FO ee, pe oe 625 1866) soe aay one 4S! ate a oe 68) axe cae ae T8627 wanes eas: AB! ae eae ee COD see aye ae 4 T8684 ee wos “dae ORE wee eet. Sade SDBC nee “aan Se EG T1869 ns. ane dee 170 81 F 20 1870 ... 64 47 38 TBPU sce sae sea VD 48 28 VSG 2 de ates mee. DL 44 27 The orders to stay and for certiorart are generally vexatious: for parties are abundantly protected by the power to appeal; but the On County Courts. . 79 real objection to proceeding to trial in the County Court usually is, that parties are protected through the procedure of the Courts from excessive costs. saat Reversals. Appeals. Reversals. 1851. ss. elt 1855... B87 Ow A 1852 ase ase BT ocy cae 1B V856) isa. aes! LO) hes Gane ~B L853 see ae BP sac 7 W857 are aes 20 aes ee 6 VBDE ae ease BF nce ae 14 It is too perplexing from the “ Judicial Statistics’ to make out the results of appeals after 1857 with certainty or accuracy, otherwise they would be stated. An especial reason to state them is, that Mr Solicitor-General Harcourt, in his “Plan for the Amendment of the Law” [p. 42], affirms that “the cost and difficulty of carrying an appeal from the County Court to the Courts in Westminster is such that the number of appeals is curiously small, attended, how- ever, by the remarkable fact, that the proportion of reversals of decisions is singularly large.’ It is to be regretted that the remark- able fact was not distinctly illustrated by figures. In the hearing of many thousand cases there must be some difficult and doubtful questions. Messrs E. F. Burton, J. Young, W. Ford, and E. W. Williamson “ practically represented the views of the Incorporated Law Society ”’ [p. 432]. Mr Young stated that more than once when he thought ut right to advise an appeal, he had been stated out of Court, and he ascribed it to the Judge. Sir W. Erle asked what he thought should be the remedy ? [p. 255] ‘I think,” was the reply, “the present system is defective; it leaves it in the power of the County Court Judge, without any communication whatever with the parties, to state the case in his own way; the parties are not heard upon that, and when they come to the Court they find they come upon a statement which really puts an end to the matter. There is nothing to be discussed.” Why not have named the Judge, the advocate, and the place P This statement is a FICTION. Then again [6,296]: “I think that giving the Judge the exclusive power of stating the case in his own way, without any opportunity for the purpose of conferring with him as to what the case should state, is an inexpedient course.” Mr Whitmore, J.C.C., said that in the only case he had of an appeal the parties attended him. The reply was, of “course, occasionally they may.’ But it is not may: they can and do do so. Mr Whitmore [6,301] read the law, namely : “ The appeal must be in the form of a case, agreed on by both parties. If they cannot agree, the Judge of the County Court must settle the case.” Then said Mr Edwards, “I quite agree that that is the practice,” and added: “I see one of the questions is as to the costs of appeal.” This was a sudden jump into another matter. The Judge is not by law required to state the case: the 80 On County Courts. parties, or their counsel and attorneys, draw up and agree, if they can, on what shall be stated; the Judge has not, except by consent, the power to state the case, and if the parties agree, and insert what is erroneous, the Judge, without consent, cannot correct it. {Warner v. Riddiford, 4, Com. B. R., 180.] In the case of Watson v. The Ambergate R.C., 17 Law Times Rep. 125, note (a), Patti- son, J., said: “ The case ought not to be drawn by the Judge unless the parties are unable to agree on a statement of facts ;” and in the case of Cawley v. Furnell, 20 L.J., 197-199, Maule, J., said: “ This case purports to have been stated by the Judge; but it does not appear in the case that the parties could not agree in stating it. The Judge has no business to state the case unless the parties have disagreed. It was so held in the Q.B.ina recent case.” See, also, Hackin v. Lee, which preserved the right to appeal when there had been excusable delay. The “Incorporated Law Society of Liverpool and the Law Societies of Birmingham, Leeds, Newcastle, and Gateshead’’ [p. 120], however, set up the same fiction as the “Incorporated Law Society of London” [s. 117]. They have had written : The present system of appeals from County Court Judges is, in our opinion, not efficient. Greater liberty of appeal should be given, as a right, on points of law, and some power of settling the points of appeal, in case the parties are not satisfied with the case for appeal as stated by the Judge. We attribute the small number of appeals to the inefficiency of the present system [p. 120, Q. 23]. Mr Justice Quain also entertained the popular legal error. [Q. 3,246.] “Now,” said he, “those who have to argue these cases in the Court above, find that it depends a great deal on how the Judge states the facts, and that the Judge may so state the case as to state the appellant entirely out of Court. Do not you think it is a very objectionable system that the Judge, from whose decision the appeal is made, should have such a power of stating the case as to state the appellant out of Court ?—Yes.” When and where were the cases alluded to found, and who were “ those’? who alleged misconduct ? Why not have named the Judge or Judges referred to ? As this matter of appeal is important, it is necessary to dwell on it. Mr Rowlands, of Birmingham, gave a very good account of the course pursued on appealing. He said : Mr Rowlands: Assume that I am engi for the defendant, and have a verdict against me, probably on points of law which I may have raised, the defendant will ask my advice, ‘‘ whether I would advise him to appeal.” If I say, ‘Well, I think the Judge is wrong in point of law, and I should appeal on such and such a ground,” then he says, ‘‘ Very well ; give notice of appeal, and take the necessary steps.” I give notice of appeal, and then draw up my case, first of all stating what the action is brought to recover, and, as a rule, giving a copy of the plaint, and then stating shortly the evidence given for the On County Courts. 81 plaintiff and for the defendant, and the ie raised by the defendant, upon which we disagree. Then I give the decision of the Judge. That ease I send to the advocate on the other side; in fact, the same as I would send a draft to be perused by another attorney. That advocate would probably make some alterations, and send the case back to me If I agree to these alterations the case is engrossed. I take it before the Judge at the next Court, and he signs it, as a matter of course. If I will not accept the alterations made by the advocate on the other side, we attend before the Judge at the next Court day, and he settles the difference between us upon the points as to which we differ. 5910, In the course of your experience, bas there been any dissatisfaction as to the settlement by the Judge in cases where it has been necessary to apply to him ?—None whatever. If it were not possible to state concisely the one question, that is to say, the one view, the view of the one side, we would have both views put in the alternative, one contending for one view, and the other for the other.—Mr Parry: I entirely agree in that. 5911. Mr Justice Quain to Mr Rowlands: It is not the question of what you would contend which would be points of law. The consideration Sir William Erle intended to suggest was this: supposing the Judge against whom you are appealing so settled the facts and the conclusions from the facts that he ousts you from your appeal altogether ?—Then I would say at once these are not the facts upon which the case was decided. 5912. The Judge says, ‘‘I find the facts to be so and so,” and although that opinion may be erroneous he may by so finding the facts oust you from your appeal altogether 7—I have never met with such a case, No: nor is it likely to be met with if those who appoint Judges do not job the appointments for dishonourable reasons and without ascertaining the character of those whom they appoint. Things may be done that are erroneous, but an error is excusable when the inten- tion of the act is honourable and the error is unseen, assuming that there is qualification or competency to act and care taken to attain correctness. “‘T never give a judgment,” said the late Mr Ellis McTaggart, J.C.C., ‘‘on any point that raises a question of law, without fully stating my grounds. I think it fair to all parties, so that they may see whether they will appeal or not.” There is no Judge who ought not, and perhaps does not, do the same. “The point,” said the late Mr Welford, J.C. C., “upon which the parties differ when they come before the Judge is generally a very small one. It very seldom happens that the Judge has to redraw the case ; he generally settles the points to the satisfaction of the parties and in their presence.” 4842. “ Of course, if he settles them to the satisfaction of both parties there is an end to the question ?— The object of the Judge is only that the case should be stated, go that a Superior Court should have the means of deciding whether his decision is right or wrong. He does not care whether it is reversed or not, at least that is my feeling.” It is of overwhelming importance toa Judge that his conduct should be blameless and it is not to be imagined he would be so base as to endeavour to secure the affirmation of his opinion through resort to a despicable trick. Notwithstanding the charges made against the Judges by the Law Solicitors, it is clear that the parties to an action and their advisers are required to set out the facts on L 82 On County Courts. appeal, and the Judge is not required by law to state the case but simply to settle any point in the case on which the parties or their legal advisers differ. If these societies in their reading of the law and their law witnesses are so much in the dark in their professional practice and are so inaccurate, is it not probable that all their alle- gations of misstatement of the facts on appeals are erroneous, for they speak only by report or they would not have erred? At all events, the Commissioners should have asked when and where the cases happened which were referred to. Judges are accessible when a case is settled if it is desired to attend them. The Judge meets the attorneys; he has his notes on the table and requests them to state what fact it is they dispute; reads to them his notes on the point disputed, and then adds to, amends, or confirnis the statement suggested by one of the disputants: all parties interested being pre- sent. The result thereafter of the appeal is a matter in which the Judges are perfectly disinterested. We all know how many applications after Assizes are made against the conduct and rulings of the Judges of the Superior Courts. We may assume that not- withstanding any course Judges may take they are not infallible though they are upright; but Mr Justice Quain implied something being done, not attributable to mere fallibility, in order to stop the argument of a case. In two instances before the writer there was misconduct. In one, a misrepresentation of the case; in another, though the judg- ment given was delivered in writing and read publicly and printed the same day, yet in the notice of appeal that was stated as an opinion expressed which was never in the written judgment nor to be inferred from it. “The small number of appeals,” said Mr Ingham, J.C.C. [p. 5], ‘‘may fairly be attributed in a great measure to the anxious care of the Judges to be correct in their decisions. The power to adjourn the consideration of cases and the practice of giving written judgments, tend, J think, greatly to this result. A consideration of the reasons on which the judgment is founded is thus forced on the parties.” Mr Harden, J.C.C., says: ‘The paucity of appeals is perhaps attributable to the fact that in cases of doubt the Judge can nearly always reserve his deci- sion until he has consulted authorities and thought the matter over.” “I think the present system of appeal efficient. I attribute the small number of appeals from the County Courts, first, and principally, to the fact that the Judges have time to and do thoroughly investigate and weigh the cases heard by them, and that where any difficult points of law arise they have the opportunity, and generally avail themselves of the opportunity, of reserving their judgments, and that consequently their decisions are generally well con- sidered, and, as I believe, sound and reliable judgments ; and, secondly, to the small amounts generally at issue, rendering it hardly worth while, in the majority of cases, to risk the cost of an appeal against judgments which are generally accepted as entitled to considerable weight” [Mr J. C. Townsend, R.C.C., Swindon]. On County Courts. 83 “*T attribute the small number of appeals—1st. To the care taken by the Judges to reserve their decisions in cases of difficulty ; and this reservation may, generally speaking, be managed even in a jury case. 2ndly. To the moral influence which a County Court Judge who conducts himself prudently has throughout his Circuit ; so that even if one of the parties is dissatisfied with his decision, he generally acquiesces in it. 8rdly. To the absence of formal pleadings, the fruitful source of litigation in the Superior Courts. 4thly. To an unwillingness to incur fresh expense” [The late Mr Collyer, J.C.C.] “T think the present system of appeal is efficient. I attribute the small number of appeals to the small importance of the cases, and the limited means of the suitors -speaking generally—and also to the fact that the County Court is never troubled with technical questions arising upon pleadings, and seldom with questions of construction . . . . asufticient appeal on the facts is afforded by the opportunity of applying for a new trial when there is any miscarriage as tofacts. . . . interlocutory applications are almost unknown in the County Court, so far as I am aware” [Mr Thomas Ellison, J.C.C., Circuit 13.] 25. The late Mr Stansfeld, J.C.C.: ‘‘ The present mode of appeal is conve- nient enough, with this qualification, that the Judge should have power in all cases to settle them, and not only where the parties differ.” 25. Mr Wildman, J.C.C.: ‘I think it hard that a Judge should be obliged to sign a case where he disputes the correctness of its statement. In that instance I think the appeal should be heard and disposed of on the Judge’s notes ; otherwise I think a special case the most convenient mode of appealing.” Mr Herbert, J.C.C. : ‘‘But I would give the Judge the power (which he has not at present) of protecting himself against an imperfect or incorrect state- ment of the facts, and of the questions raised before him, where the case is agreed on by the parties.” There was sent down for hearing in 1872 before the writer, with declaration, pleas, &c., a case from the Court of Exchequer, in which the plaintiff sued for £25. The sum of £13 10s. had been paid before the action was commenced. The plaintiff admitted he had received this money, and alleged it was not paid on this account. Judgment was given for thirty shillings. On appeal, a case was drawn up and the defendant was unable to pay for assistance, and did not appear nor did he appear in the Court above. The writer objected to the statement of the case. He considered he had no power to interfere with it; but he ordered a copy of his notes of the trial to accompany the case, and, probably, they could not be referred to. The Court of Exchequer increased the finding by £5 [ie., total £6 10s.] and ordered the costs to be paid by the defendant. The late Mr Blanshard, J.C.C. [p. 8], said, ‘“‘that he hoped suitors would be protected from unnecessary and expensive appeals. This could only be done by discouraging facilities to appeal—for the effect of encouraging appeals is, to increase litigation and to give the richer of the litigants the temptation to try to weary out the poorer one by carrying the case on until his funds are expended. It is best for the public that as far as possible the decision of the County Court Judge should be final even though it may be sometimes wrong.” This is, no doubt, correct, so long as the limit of jurisdiction is confined to so small an amount of demand as £50. 84 On County Courts. Mr Whitmore, J.C.C., though he signed the Report as one of the ‘Com- missioners [p. 65], says, ‘‘I would strongly deprecate the offering temptations to appeal, and I certainly would not allow any appeal as to the facts. 4A dis- appointed suitor now has his redress by means of a new trial, and that, if’need be, may be by a jury.” 7 Suitors at present may in all cases above £5 have a jury. They ~ rarely have a jury summoned, and they trust the Judge. Why should less regard be given to the conclusions of the Judge than to that ordinarily paid to the finding of a jury ? Some advocates are frequently exceedingly vindictive, and as the ordinary common jurisdiction is limited as respects appeals from £20 to £50, it is exceedingly necessary to protect litigants from costs. Nota word is to be said against the power to appeal, when honestly exercised, that is, not oppressively. The appeal papers should be sent direct from the County Court to the Court of Appeal without any agency charges, and their receipt should be acknowledged by post without any expense to the parties, and there should be no London office charges whatever connected with the hearing. The Judicature Commissioners are to be commended in suggest- ing that appeals should be brought by notice of motion in a summary way, but they are greatly to be blamed in proposing to extend appeals to questions of fact. “We think,” say the Judicature Commissioners [p. 20], that “the appeal should not be limited, as at present, to questions of law, and that all appeals should be brought by notice of motion ina summary way, and upon a verified copy of the Judge’s notes, or such other evidence as to the facts or ruling of the Judge as the Appellate Court may deem expedient.” The evidence of one man is frequently more perfect and certain than that of “‘plenty of witness.” ‘I'he Commissioners would estab- lish new means to create costs and to injure suitors by vexatious, oppressive, and needless litigation. “Tt is not too much to say,” writes Mr W. F. Finlaison, “ that most of the time of the Common Law Judges, out of term, is spent in trying causes, so most of their time, in term, is occupied in trying them again on imperfect notes of evidence, on motions for new trials.” [2 Law Mag., 891.] How can it be expected that country tradesmen can pay for such professional and profitable fun ? Mr Kay, Q.C., and Mr West, Q.C. and M.P. [pp. 148, 149], jointly and severally say, ‘‘ that many suitors (plaintiffs) who resort to the Salford Court of Record object to the impediments thrown in the way of appeals from County Courts.” What are the impedi- ments? The appeal may be made by cither party in the County Court and the Judge cannot prevent it when the right to it is given On County Courts. 85 to-the parties. In the small cases under £20 it is a mercy to suitors to be protected by the considerate discretion of the Judge in grant- ing leave to appeal. It is a protection to the poor against the rich and against rogues. But if “suitors resort to the Salford Court” in the expectation of an appeal, having none of the alleged impedi- ments of the County Courts, and having the presence of a score of barristers, do suitors anticipate the expenses of appeal as something to gratify their imagination? What do they expect will be the decisions of the Judges of the Salford Court ?* The costs of an appeal Mr Cuff, the Registrar of the Westminster Court, put at £20. The late Mr Stansfeld stated that, in the case of Riley v. Lee, the appellant’s costs were £10 10s., and the _ respondent £17 9s. The Law Times of January, 1852, gives the items of taxed bills of costs, and they were on one side £12 3s. 10d., and on the other £10 18s., or a total of £23 1s. 10d. In Duddle v. Iickton (Chesterfield), the costs of the appellant were £18 14s., and of the respondent £16 6s. 8d. [p. 100]. The remarks of Mr G. Lake Russell, J.C.C., at page 133 of the Evidence given to the Judicature Commissioners on the question of costs deserve perusal. In an appeal from him, which established a precedent of somo consequence, the costs were as follows: & os. d. Appellant’s costs : ‘ . 18 1410 Respondent’s costs. ‘ . 16 6 8 Total £35 1 6 Tue Bankine System.—The next proposal of the Commissioners will be destructive, if adopted, of the most important part of the present system of the Courts and which affords great contentment to plaintiffs and satisfaction and security to defendants. They say: * In Equity cases the rules are—‘‘The appellant shall prepare the case for appeal, and all cases on appeal shall, unless the Judge shall otherwise order, be presented to him for signature at the Court held next after the parties shall have agreed upon the same; and if the Judge approves thereof it shall be signed by him, and sealed with the seal of the Court; but where the Judge does not approve of the case submitted to him, both parties shall be summoned to attend him where and when the Judge shall appoint, and at the place and time so appointed both parties shall be heard as to the form of the case, and the Judge shall finally settle and sign the same, and it shall then be sealed by the Registrar. ‘“« Where the parties do not agree upon the form of the case to be stated, the appellant shall lodge with the Registrar the draft case prepared by him, and the Registrar shall give notice to the parties that the same has been lodged, and will, on a day'to be named in the notice, be presented to the Judge for his sig- nature, and on such day the parties may appear before the Judge, who shall determine the form of the case, and finally settle and sign the same, and it ghall then be sealed by the Registrar.” 86 On County Courts. * Another important change, especially as regards the cost of the County Courts, would be the abolition of the system by which the Court is the medium for the payment by the defendant to the plaintiff of the judgment debt, which for convenience has been called ‘the BanxIna System.’ “Of the books now necessarily kept at each County Court, the abolition of this system would dispense with one-half, and the staff employed in keeping them might be diminished, if not in the same proportion, at all events to a very considerable extent. “‘ The evidence before us shows that the majority of the County Court officials are in favour of continuing the existing system, while the testimony of gentlemen connected with Local Courts, where the banking system is unknown, is on the other side. The system is not in use in Scotland.” One witness speaks of what takes place in Scotland, but in a cursory manner, and no investigation of it took place. It was not, therefore, as evidence, deserving of notice. The probability is that the banking system ought to exist in Scotland. The worthless testimony of persons connected with the Local Courts of Record which the Commissioners actually recommend should be abolished was relied on. They, also, say “a majority ” of the County Court officials are in favour of the banking system: they do not say what is the minority. In the questions propounded to the Judges, the subject was not referred to and they were not separately invited to express their opinions. There is no expense in paying money into Court, and there is none incurred in obtaining it from the Court office. The Report of the Commissioners is dated July 8rd, 1872. On January 9th, 1871, the Standing Committee of the Judges of the County Courts had made a remonstrance on this subject. They said : “Tt has also been contended that the convenience of the suitor would be promoted by abolishing the banking system. This Com- mittee is of a different opinion, whether a saving of time, trouble or money be considered. The suitors could not themselves execute the business of paying and receiving money, and keeping proper accounts and vouchers, at a less cost to themselves than the portion of the poundage which they now pay for the banking business. The proposed change would give suitors, both plaintiffs and de- fendants, much extra trouble, particularly when debts are ordered to be paid by instalments, and where neither of the parties can keep accounts without assistance. This Committee thinks that both plaintiffs and defendants would greatly prefer, even upon economic grounds, to continue the present system. On County Courts. 87 “Tt is well also to consider what the order of Court must be as to payment if banking were abolished. It must in all cases fix the time and the place of payment, as the defendant cannot be expected to make more than one attempt to pay, nor can the plaintiff be expected to remain at home upon more than one occasion to receive. If the payment is not to be made to the plaintiff personally, then the agent entitled to act for him must be named in the order, otherwise the defendant would be constantly liable to repay instalments which he had left at the dwelling-house, or paid to some person assuming to have authority from the plaintiff. Persons who are plaintiffs in small debt cases would, in a large majority of instances, be obliged to appoint an agent, and any change of an agent would have to be made by order of the Court. “ As the vast majority of small debts are usually ordered to be paid by instalments, as many appointments of days of payment must be made as there are instalments. It would be very difficult to fix days and times reasonably convenient to both parties, and if the residence of either was not permanent, or they lived at a distance from each other, the difficulties here pointed out would be much increased. “There is no analogy between the business of the Superior Courts, the Lord Mayor’s Court, the Court of Passage, the Salford Court, and other local Courts, where attorneys are employed, and the small debt business of County Courts. In the former the payments are made not personally to the plaintiff, but to hes attorney, who has a known office open during the business hours of each day, witha person in attendance to transact such ordinary business as receiving -instalments [? See statement of Mr Kay and Mr West against orders of instalments! Jan. 20, 1870, p. 148] on a judgment, and giving receipts for tho same, thereby affording a known central place for the receipt and payment of money similar to the advantage which the banking system gives to suitors in the County Courts. “Tf the banking system of the County Court were discontinued, disputes will be frequent, and much of the time of the Court must be taken up in deciding them, and in hearing applications to set aside warrants of execution or in trying claims for damages for overmarking executions. “We therefore strongly deprecate the abolition of the banking system.” The Judicature Commissioners might have shortly stated their official proposal thus: “ We are convinced that the largest possible amount of money paid under judgments of Courts of Law should be paid into the hands of attorneys and agents ; and that plaintif’s should incur the largest possible amount of loss and trouble in obtaining possession of any money actually paid to their account by judgment 88 On County Courts. debtors.” When debt collectors receive money do they all pay it to plaintiffs without deduction? Are instalments received in their offices and paid out without charge? The proposal, if adopted, will destroy a most useful portion of the County Court system. There can be no doubt that all the County Court Judges and Registrars would or ought earnestly to defend the “ Banking System.” They must know its great and paramount importance. The Commissioners, however, apparently attending to certain pro- fessional influences, have preferred to be guided by other evidence than that so emphatically expressed by the Committee of County Court Judges. Money paid into Court is paid at one well-known office. All poor people know where to go and at what hours. The account of payments is carefully kept and defendants are certain of correct receipts for what is paid by them. The plaintiffs know where to seek their money, and they obtain it without any deduc- tion. Neither the payer nor payee are charged with any fee on paying or receiving. It is a good and admirable system. The cost of it to the public is far less than the cost of professional charges for similar work. It gives security and contentment to suitors, and, above all, it accomplishes in the best manner the object of seeking the aid of a Court of Law. The fees, also, paid by the suitors pay for the banking system and its abolition will cause loss of time to cre- ditors, or loss of money, or extensively compel the payment of agency charges in the collection of payments. Execution against the goods of a Debtor and Inuprisonment.—In the event of the non-payment of a judgment debt there may be execution, or a levy by the sale of the goods of the judgment debtor, in order to satisfy the debt; or, under the Debtors Act of 1869 [32 and 33 Vict., ch. 62, sec. 2], the payment of the debt may be enforced by imprisonment, if the debtor has the means to pay the debt. A debtor can no longer be imprisoned in satisfaction of a judgment debt as was the case under the Common Law. The following figures relate to the Superior Courts : 1867. 1868. 1870, 1871. 1872. Judgments vee 41,704 30,431 27,684 24,129 23,554 Fi, Fa, exeontion agsinst} 99,349 14,886 17,070 16,815 14,681 Ca. Sa. executions by arrest, in satisfaction of 8,181 7,975 5 3 9 the judgment debt The reader will observe the effect of the Act of 1867 as respects the decrease in the number of judgments and of executions against the goods of debtors. Compared with 1867 there was a decrease of writs in 1868 of 20 per cent. [ante p. 51.] On County Courts. 89 The writs of arrest before 1869 were for arrests in satisfaction of the debt, and the discharge from custody was either through bank- ruptcy or through payment or settlement of the debt. The following table also relates to the Superior Courts. The arrests in satisfaction of judgment debts were made at the will of debtors. The imprisonment of debtors is now the effect of a judicial order, either of the Superior Courts, or, as it has always been as respects judgment debts in the County Courts, of the Judges of such Courts. Exccutions : Date. Summonses, Appearances. Fieri Facias. Ca. Sa. Against Goods; Arrest. 1865 119,097 33,723 19,140 7,689 1866 133,160 88,410 20,622 8,654 1867 127,221 38,196 20,340 8,131 1868 82,876 28,747 14,386 7,975 1869 81,778 27,549 14,769 8,223 1870 72,660 23,577 17,070 5 1871 65,297 21,792 15,315 3 1872 63,926 21,467 14,681 9 Mr J. EB. Saunders [S. C. I. D., 1873, p. 35] Chamber Clerk of the Judges of the Superior Courts, stated that no record is kept of the number of summonses or of the number of committals in cases heard in Chambers under the Debtors Act, 1869. Judgment summonses are taken twice a week, namely, on Tuesdays and Fridays. He should think that fifteen to twenty would be the average. The Judges, in the first instance, usually make an order to pay by instalments. Mr Ayrton, M.P. [Q. 143] asked: “Do you mean to say that any Judge of a Superior Court can direct that a debt should be paid by instalments ?’”” Why not? See the Debtors Act, 1869 [82 and 338 Vict., ch. 62, sec. 5, subsec. 2]. “And can he commit on each instalment ?—Yes.”’ These orders, said Mr Saunders, vary according to the means of the debtor. If the defendant does not appear, and he is shown, on the reading of an affidavit, to have the means to pay an order for committal is at once made. The affidavits may say that the defendant lives in a good house, well furnished, or that he is in business, or that he is a clerk in some office or in a government department [824]. If the defendant attends, a week may be allowed to enable him to have the opportunity to pay. The Judges take the extreme limit during which a debtor may be in prison, namely, six weeks [Mr Bass, M.P., 8. C. I. D., Q. 178, asked “If any man for a pure debt had been imprisoned in the year by the order of a Superior Court?” !!] Mr Saunders had known of orders against ladies, but he couid not say if they were executed. It is an astonishing fact that the summonses and orders made at Chambers are kept, but no record of what they are. Mr Saunders says that if a record were kept, two or three M go On County Courts. more clerks than at present would be wanted. That there should not be at least one clerk to do the work, who could certainly do it, isa strange economy. The Judges are loth to commit if they can avoid it. About one half of the summonses are heard. Bills of sale in many instances defeat executions against the goods of a debtor. In the County Courts more distinct and perfect information is required of the “means” of a debtor to pay than is required by the Judges of the Superior Courts, and few County Court Judges conimit a debtor for six weeks, for such committals would be harsh and vindictive, and would not be a mere pressure on a debtor on account of not doing that which he could have done or can do. On the Select Committee of the House of Commons relating to Imprisonment for Debt [1873], [S.C.ILD.] there were eight barristers; Mr Walpole, Q.C. (Chairman); Mr Attorney-General James, Mr Lopes, Q.C., Mr Stapylton, Mr Cross, Mr Cobbett, the Right Hon. Mr Ayrton, and Mr M‘Mahon. In the Report [p. vii.] they say that the possession of the power to imprison “the person of the debtor is too often made use of to supersede the ordinary duty of caution and inquiry on the part of the creditor before he allows the debt to be contracted ; that a vicious system of credit has thereby been introduced; that the exercise of sucha power is a deviation from the Common Law of Eing- land, by which execution against the goods of the debtor was originally the suitable and only remedy.” ‘ The Committee were grievously mistaken in this statement of the law. In the case of Morton v. Hope [24 L. J., 169, ap. 1855] it was held that the judgment of a County Court could not be removed into a Superior Court for the purpose of issuing execution thereon [but now see 19 and 20 Vict., ch. 108, sec. 49, a.p. 1856]. Baron Alderson said: “ You are endeavouring to obtain the power of imprisoning a party for life, whereas by virtue of a judgment of a County Court, a party can only be imprisoned forty days.” He alluded, in fact, to the Oommon Law effect of a judgment of a Supe- rior Court independent of Statutes relating to Insolvency and Bank- ruptcy. FOna member of this Committee of 1873 appeared, by his ques- tions, to have been enamoured of his own idea of the Common Law on this subject, but he was charmed through his own delusion. “ My opinion,” said Mr Wake, solicitor, at Sheffield, “of credit in domestic as contra-distinguished from trade transactions is that it is very unadvisable and most pernicious.” Mr MacMahon, M.P. [3,518] : ‘You are aware that this power of imprisonment for debt is merely the result of Statute Law and was not allowed by Common Law? Certainly!” [See also Q. 1,736.] On County Courts. 9! “* At Common Law there was no imprisonment for simple debts !” Mr J. E. Davis [Q. 1822, 1967.] Mr Leech, solicitor, “ had no prejudice against imprisonment for debt because it is the creature of Statute Law.” [8,714.] “Tae Common Law”? respecting debtors in gaol was stated by Chief Justice Montague. The gaoler was not bound to maintain them. [Plowden’s Reports, p. 68. ] ‘“‘Tfone be in execution,” said Chief Justice Montague [4 Ed. VI., A.D. 1550], “he ought to live on his own, and neither the plaintiff nor the sheriff is bound to give him meat or drink, no more than if one distrains cattle and puts them in a pound, for there the owner of the cattle ought to give them meat and not he that dis- strained them; no more is the party or the sheriff who has one in execution bound to give meat to the prisoner, but he ought to live on his own goods, although he be in for felony, until he be attainted, and this by the course of the Common Law. For before attainder the goods are his, and in his hands, and the Common Law on his point is confirmed by a statute; and if he has no goods he shall live on the charity of others, and if others will give him nothing, let him die in the name of God if he will, and impute the cause of it to his own fault, for his presumption and ill-behaviour brought him to that imprisonment. Inasmuch, then, as the sheriffs and other officers are not bound to find their prisoners meat,” &c. In the case of Manby v. Scott, 1 Mod. Rep. 182 [a.p. 1663]. Mr Justice Hyde stated the law thus, in a judgment delivered in the Exchequer Chamber: “If aman be taken tm execution and lie in prison for debt, neither the plaintiff at whose suit he is arrested, nor the sheriff who took him, is bound to find him meat, drink, or clothes: he must live on his own or the charity of others, and if no man will relieve him let him die, in the name of God, and so say I.” The attention of the Committee was called to this rule of the Com- mon Law [Q. 3,522], and in this, as on other points, they drew a conclusion which was erroneous. In Scotland also, previous to the year 1696, prisoners for debt were subject to great privations. The Act of the 22 and 23 Charles II. [a.p. 1670], ch. 20, secs. 8,9, and 13, contains these recitals :—‘‘ Forasmuch as very many persons now detained in prison are miserably impoverished either by reason of the late unhappy times, the sad and dreadful fire, their own misfortunes or otherwise, so that they are totally disabled to give any satisfaction to their creditors :—and so become, without advantage to any, a charge and burthen to the kingdom—and, by noisomeness (irreparably incident to great poverty) may become the occasion of pestilence and contagious diseases to the great pre- judice of the kingdom ;”’—“ And whereas it is found by common experience, that such person or persons that are under arrests or 92 On County Courts. committed to the custody of sheriffs, bailiffs, gaolers, keepers of prisons or gaols, are much abused and wronged by extorting great fees, rewards, and other exactions, and put to great expenses under pretences of favour or otherwise, whereby they are greatly oppressed and many times ruined in their estates ;”—“ And [sec. 13] whereas it has become the common practice of the gaolers and keepers of Newgate, the Gate House at Westminster, and sundry other gaols to lodge together in one room or chamber and bed, prisoners for debt and felons whereby many times honest gentlemen, tradesmen and others (prisoners for debt) are disturbed and hindered in the night time from their natural rest by reasons of their fetters and irons, and otherwise much offended and troubled by their lewd and profane language and discourses with most horrid cursing and swearing— much accustomed to such persons ”’—it was declared that it should not thereafter be lawful to keep prisoners for debt and felons to- gether in one room or chamber—but that they should be kept apart from one another in distinct rooms. In Notes and Queries, December 10th, 1864, page 476, a petition to the House of Lords is referred to, dated King’s Bench Prison, Feb. 14, 1771, signed by the direction and at the request of 340 prisoners confined in the King’s Bench Prison, setting forth—“ That your Petitioners have often applied to the honourable Court of King’s Bench for redress of their grievances, humbly imploring the Judges to explain and point out the law, if any, for such dreadful punishment as perpetual imprisonment, at the will, perhaps, of one single creditor for a debt of ten pounds without the smallest allow- ance for our support.” By what was called “The Lords Act” of 1758 [82 Geo. IL, ch. 28], a debtor prisoner, on certain conditions, charged in execu- tion for a debt not exceeding £100 might obtain his discharge unless the creditor insisted on detaining him, in which case the prisoner was to be allowed by him two shillings and fourpence a week. In 1807, the Act for the Discharge of Debtors in Execution for Small Debts from Imprisonment, in certain cases, was passed [48 Geo. IIT., c. 123], by which persons in execution for a sum not exceeding £20, exclusive of costs, who should have lain in prison for twelve successive calendar months were to be discharged. By the 7 and 8 Vict., ch. 96, sec. 57 [1844] it was enacted, “that after the passing of this Act [9th August, 1844] no person should be taken or charged in execution upon any judgment obtained. in any of Her Majesty’s Superior Courts, or in any County Court, Court of Requests, or other Inferior Court, in any action for the recovery of any debt wherein the sum recovered shall not exceed the sum of £20, exclusive of costs recovered by such judgment.” Tn the following year, namely, on the 9th of August, 1846, it became On County Courts. 93 necessary to alter this state of the law, and the 8 and 9 Vict., ch. 127, was passed. It was provided that if a debtor appeared to have the means of paying the judgment debt, and “shall not pay the same as the Court shall order, or as the Court shall have ordered,” he might be committed for a time not exceeding forty days, and might be confined where debtors-in-execution of the Superior Courts were confined. The Law Times, 21st September, 1845, thus described the effects of the Act of 1844: ‘‘The law virtually deprived creditors of all remedy for the recovery of debts under £20. Our table was daily loaded with letters from all parts of the country detailing cases of grievous injury, resulting from the sudden with- drawal of the protection of the law from unlucky creditors. Among the multitude of dishonest debtors there was great rejoicing. The law had given to them an indemnity ; they were free from the fear of punishment for defraud- ing their creditors, and they were not slow to avail themselves of the liberty allowed to them. While the rogue was rejoicing the honest man was threa- teved with ruin, and when he demanded payment of his debts he was received with a laugh. All debts under £20 were virtually CONFISCATED.” In 1859, Mr Stapylton, J.C.C., wrote thus :—‘ In our anxiety to protect the working classes from the consequences of their own improvidence we must take care we do notinjure the respectable tradesman.” I will conclude with quoting a passage from a legal work on the effect of the 7th and 8th Vict., ch. 96, which abolished imprisonment for debts under £20: Than the 7th and 8th Vict. chap. 96 [1844], no weapon has been sent out of the legislative workshop more apt for the purposes of unprincipled men, or more powerfully or fatally weilded by such men, to the destruction of their fellow citizens. It appears from inquiries made, that poor traders have been victimised under its provisions by their debtors owing less than £20 to an extent which in the aggregate is absolutely monstrous to contemplate, and that Act has been in effect little more than a powerful aid to a system of wholesale swindling. This was partially remedied by the 8th and 9th Vict., ch. 127, and totally by the Act of 1846 establishing the County Courts. The late Mr Arthur J. Johnes, J.C.C., printed a letter in 1868 addressed to the late Lord Brougham, and the following are extracts from it: It has been objected to the County Court system of Imprisonment on the ground that it encourages “‘a false system of credit.” Is it meant to be said, that all credit is ‘‘false,” or in other words ‘ mis- chievous?” I presume it cannot be denied that credit is necessary to nearly every professional or commercial man, and that it is frequently necessary to men of large independent fortune. Is it intended to say, that it is not required by the poorest persons in the country, viz., the labouring class, whose means are the smallest, and who are more exposed than any other classes to the trials and vicissitudes of life? Is it really meant that the labouring man alone is to be expected to pay ready money on all occasions, not excepting periods of adver- 94 On County Courts. sity and misfortune, as for example, during the time of illness of himself, wife, or children? This theory of ‘false credit” rests entirely on the utterly groundless sup- position that the debts sued for in the County Courts are debts, generally speaking, which have been improvidently contracted, and that they are the source of the poverty of defendants. These notions rest on mere imagination. The true explanation is, that they have been commonly contracted in the fulfil- ment of moral obligations which attach to the father of a family: that the credit has been given and taken in good faith on the part of both tradesman and customer, but afterwards temptations of our national vice, namely drunken- ness, have robbed debtors of their resources, and produced that poverty which has been most absurdly ascribed to debts sued for, and usually due for food and clothing. The entire abolition of Imprisonment for Debt is not a novel experiment. It was tried in the numerous Small Debt Courts which existed prior to the estab- lishment of the County Courts :—with what effect on commercial credit and on ublic morality will be seen in Mr Elliott’s admirable work entitled ‘Credit the Life of Commerce.’ The consequent evils were found to be intolerable, and the power to imprison was restored in the modified form in which it now exists in the County Courts; [and it may now be added] in the Superior Courts in common with County Courts in all cases of debts for £50 and under this amount, It has been with sentiments of surprise and perplexity that I have noticed the attempts which have been made from time to time by eminent public men to repeat an experiment of which the results were disastrous to the commercial interests of the country, especially considering the masterly exposition of those consequences contained in the little work alluded to, The Select Committee of the House of Commons in 1873 on Imprisonment for Debt give no account of the effect of the Act of 1844. The Act of August 9, 1845 [8 and 9 Vict., ch. 127], limited imprisonment for debt to not exceeding forty days, and authorised orders to be made for the payment by instalments of debts—a wise and most humane provision, affording judicial protection to debtors. Under Courts of Request Acts, imprisonment in satisfaction of debts was usually ordered for as many days as there were shillings of debt. Imprisonment in satisfaction of a debt was abolished in the Inferior Courts in 1845. If a debtor could not pay, it was barbarous to imprison him. If he could pay, submission to im- prisonment was a voluntary act} and was a most dishonest method of avoiding payment. The Act of 1845 provided that no imprison- ment was to operate as satisfaction of a debt. The Select Committee of the House of Commons actually describe these changes in the law to be those of increased severity towards the smaller class of debtors. They mixed up cases of ability to pay with cases of inability to pay; cases of wholesale dealing with cases of the purchase of necessaries on the credit of mere wages, or cases in which the fund for the payment of a debt con- tinues sufficiently the same to diminish or discharge a debt which was contracted in the first instance on credit reasonably given On County Courts. 95 The Committee also cite with approbation some opinions of the Criminal Law Commissions in 1832, without understanding the meaning of a reservation “compelling the debtor either to pay” or make a cession of his property—compulsion to pay implying ‘means to pay.” They cite by name the opinions of three witnesses whose expressions need explanation and are simply sentimental, that is, inaccurate, namely, Mr Kerr, Mr Leech, a solicitor at Derby, and Mr A. Russell, J.C.C. Bankrupts are referred to as “rich men!” [Rep. xxiii.] and imprisonment is said often “to inflict on honest debtors unmerited punishment,” though the law protects them from imprisonment unless they can pay. The law now in force is as follows: By the Imprisonment for Debt Act, 32 and 33 Vict., ch. 62 [a.p. 1869], which came into operation on the Ist of January, 1870, sec. 5, sub-sec. 2, it is pro- vided that the jurisdiction of the County Courts authorising impri- sonment shall only be exercised when it is proved to the satisfaction of the Court that the person making default either has, or has had, since the date of the order or judgment, the means to pay the sum in respect of which he has made default, and has refused or neglected, or refuses or neglects, to pay the same. And proof of the means of the person making default may be given in such manner as the Court thinks just: and for the purposes of such proof the debtor [defendant | and any witnesses may be summoned and examined on oath according to prescribed rules. This provision also extends to judgments of the Superior Courts, and the term of imprisonment is not to exceed six weeks [forty-two days], but if a debt is above £50, a process in bankruptcy may be taken [82 and 88 Vict., ch. 71, sec. 6]. The Judges of County Courts usually limit the term of committal to eight or ten days, and the Judges of the Superior Courts usually commit for the whole term of six weeks. The words of the very same Act, and of the very same section of the Act, govern the Judges of the Superior Courts and the Judges of the County Courts, in the hearing of summonses issued in consequence of the non- payment of debts under £50; in enforcing the attendance of wit- nesses and the production of evidence; and in making orders of committal. By Rule 12 itis declared “that any witness may be summoned to prove the means of the judgment-debtor in the same manner as witnesses are summoned to give evidence on the hearing of a plaint.” By Rule 23 “the costs of orders of commitment, whether executed or unexecuted, shall be allowed against the defen- dant, unless the Judge shall otherwise direct.” By another provi- sion, when the creditor applies for a judgment-summons, he is to declare that he is aware that if he does not prove the ability of the debtor to pay, in the terms of the Act, he will have to pay the costs of the summons. 96 On County Courts. These provisions of the law are protective, and were enacted in order to prevent the useless detention in prison of a debtor who is without means to pay a debt. The debtor ought to be required to prove his inability to pay, but the creditor is required to prove that the person who has had his goods can pay for them. As, however, the burthen of the costs of witnesses in every case to prove the defendant’s “‘means” to pay a debt or an instalment wuld be very oppressive to the debtor, and as the words of the Act are “ proof of the means of the person making default may be given in such manner as the Court thinks just,” this course has been adopted in County Courts—the authorised certificate of a master who pays wages to a defendant of the amount he periodically pays is accepted, instead of requiring his personal attendance, or that of his pay clerk or other witnesses. This course of proceeding is known through- out the Circuit. If the debtor or his wife, or any person attending on his behalf, disputes the correctness of the certificate, then evi- dence of “‘ means to pay ” must be given on the personal attendance of any person who can give the necessary information. Evidence on the part of the plaintiff is also given and the circumstances of the debtor inquired into. “If you came to me,” said Mr Bass, M.P. [4,966], “I should say I did not approve of this system, and did not wish to give the information. What would youdo?” In one town this occurred. The employer refused to attend on a subpoena, saying “‘ he was not to lose his time about the small debts of his men.” He was fined £2, and told ‘‘ that if he did not attend he would next time be fined £5.” He then attended. Having yielded obedience to the law the fine imposed wasremitted. He had been neglectful of his duty. And this course must prevail wherever the law is to be administered. Who would think of telling the Judges of the Superior Courts, acting under this very same law, that the information required by them should not be rendered? Are private persons to stop the pro- cesses of the law? If in civil cases, why not in criminal cases, at Quarter or Petty Sessions, or even at the Assizes? Under the 28th Vic., ch. 99, a Judge of County Courts has for the purposes of that Act the “powers of a Judge of the High Court of Chancery ;” under the Bankruptcy Act, sec. 66, also “the power and jurisdic- tion of a Judge of the High Court of Chancery,” and under another Act, jurisdiction in Admiralty. Is it to rest on the opinion of any private persons whether evidence which any person under these Acts may urgently need for assistance shall be afforded, or whether he shall be sent comfortless away and his claim for assistance be rejected ? It is not always that the condition of a family can be ascertained, but every encouragement is given to have it told. The law directs proof to be given of the means of the debtor On County Courts. 97 and obedience to the law is the duty of all persons and especially in the giving of evidence. The truth must be made known even when Members of Parliament may desire to be obstinately silent. If the amount of a man’s wages is sought to be known it is not in order to injure him but to protect him from the suspension of his daily work. Mr Hyslop, Mayor of Newcastle-under-Lyne, who gave most instructive evidence, was asked by Mr Anderson, M.P. (4,764), “You do not think the manufacturers would be entitled to say: ‘What my men earn is confidential between them and me and you have nothing to do with it?’” “He might.”—“ And do you not think that would be a most proper answer to make?” “Ido not think so. I do not take that view of it.” This was an honest answer. + 4759. ‘You have suggested that employers are quite willing to give information with regard to the amount of wages that their men earn, or that if they were not they ought to be? Inever knew a case where an employer refused to give that information.” —‘‘ You said that you thought they ought to do it? Yes, if the question is fairly put, I do not believe there is a large employer in the neighbourhood who would refuse to give you that information.” —‘ You suggest that the employer of workmen should tell any respectable person who chose to ask what they earned? I think if you applied to a respect- able firm, and gave the reason for doing so, not one firm out of the hundreds in our neighbourhood would refuse to give you that information.” In the case of Horsnail v. Bruce, L.R. 8; C.P. 378 [May 9, 1873], a very important decision was made by the Court of Common Pleas. Bovill, C.J. and Brett, J., held that the power ofa Judge of a County Court, under sections 98, 99, and 103 of the 9 and 10 Vict., ch. 95, to commit more than once for the non-payment of a judgment debt is virtually superseded by section 4 and 5 of the “ Debtors Act, 1869,” and that it is now-limited to a single commitment (not to exceed six weeks) for a single default; each neglect to pay, when the order is to pay by instalments, being deemed to be a fresh default. One effect of this decision is to make imprisonment, even when a man can pay the debt, satisfaction for the debt instead of simply operating as pressure on him to pay. Another effect of this decision is, that it amounts to confiscation of the debt. Several cases have been before the writer in which the defendants have been shown to have abundant means to pay the judgment debt, but having been once committed for the same debt, he has felt himself bound to act in obedience to the interpretation of the law expressed by the Judges of the Court of Common Pleas. The law, therefore, inflicts the greatest injustice on numerous creditors. The probability is that the number of instalment committals will increase, and several cases have already occurred on Circuit 30, N 98 On County Courts. of defendants who can well pay, asking to be taken to gaol in order to cheat their creditors. The writer is convinced that it would afford very great ease and pleasure to all the County Court Judges if they could be relieved from the duty of imprisoning debtors. If they defend imprisonment on account of its necessity, it is because there are great interests protected through the enforcement of all contracts which can properly be fulfilled even by humble members of the enormous multitude of human beings who must daily be supplied with food and clothing. The efforts which are made to satisfy the necessities of many millions of persons are constant because the law promises reward through the security with which it protects them. This case, however, occurred at Bridgend: One S. Evans, in June, 1865, sued Mary Davies for £28 odd. The husband of the defendant had been a butcher, and went to America, where he died. Before he died she continued a butcher’s business, and sometimes when sued, pleaded coverture. Her husband died and she still continued the business, and bought, when a widow, meat wholesale of the plaintiff. Judgment was given against her. In December, 1865, it was clearly shown, on the hearing of a judgment summons, that she had the means to pay, and that she had transferred her business to one of her family. She was committed by the writer for 36 days, and he told her that he did not expect she would go to gaol for an hour, and that he made the order for 36 days in the hope it would deter her from going to gaol. He afterwards committed her four times for 36 days, in 1866; four times in 1867; and twice in 1868, and on each occasion for 386 days. On the last occasion, in 1869, it was found, when she was in gaol, that she had above £400 on her person. Then she paid the debt and went home. Some two or three years afterwards she died, and was in the possession of above £1,200. If one commitment could, before the year 1869, have satisfied the debt she would have gained £28 by 36 days’ imprison- ment, and being a miserly woman she would have accepted imprisonment from any creditor whose debt might have been sufficient to induce her to do so. She always informed the writer that she had a good surgeon in the gaol to look after her, and that she was benefited by her imprisonment having a dropsical affection of one or both of her legs. Now the writer has not committed, he believes, more than two women in nearly 22 years. He has the greatest repugnance to do so, because imprisonment in the case of a woman brings with it almost certain loss of character. There is no possible equality in the effect of punishment by imprisonment: to some it is a matter of indifference, to some it is a grave offence to their sense of self-respect, and to men in business it may be loss of ercdit and ruin. In the case of women the world is frequently On County Courts. 99 ‘unjust, and ordinarily few persons distinguish the reasons between punishment to deter or to compel the performance of necessary acts, such as committals to pay, committals for what is called “contempt of Court,” when deeds or papers are refused, or when simple acts relating to property are to be executed and are resisted, or when violations of contract, or neglect of work occur which may interrupt the prosperity of a whole district. Mr Wake was asked [3,636] if he could give to the Committee a single instance, within his own knowledge, of a man being sent to prison who was not able to pay his debt? He replied, that he believed he could; at all events, he could perhaps satisfy the Com- mittee that the thing may be done. Sir H. James, the Attorney-General, made these inquiries of Mr George Russell, J.C.C,:— 1476. Of course you are aware that the original object of the Legislature in establishing the County Court system at all, was to make them Courts for the termination of contentions between suitors? Mr G. Russell: Yes.— But I believe in practice, by far the greater portion of their business is as collectors of small debts? No doubt.—The suitors use the County Court simply as the best means of collecting their debts? Yes; at least four-fifths of the business of the Court is of that nature.—You are utilised as small debt collectors? Yes; that I say was never the intention of Lord Brougham, and the founders of the County Court system ; it is a fungus which has grown on the system, and which I should like to see removed. [This is perfect error. They were insti- tuted as a general system in substitution of pre-existing Courts for the recovery of small debts. The public discovered their usefulness and their powers were extended].—The commitments on your judgment summonses, 1 believe, refer almost entirely to this collecting business, instead of contentious business ? Almost entirely.—Where suits are brought as to contentious business, I suppose there is generally payment? Yes; practically, they never appear on judgment summonses in such suits. [Because the parties are comparatively wealthy].—I believe you are aware that by the 7th and 8th Vict., ch. 96, sec. 57, imprisonment for debt was abolished for sums under £20? Yes. [And for a short time a large sum of money was in consequence confiscated]. 1483. It has been only indirectly by the establishing of these Courts in the year 1846, that imprisonment for debt under £20 hag been re-established ? ‘Yes ; between those days, practically there was no imprisonment for debt under £20, [This is u mistake. The old law was, that imprisonment satzsfied the debt. Imprisonment was revived in 1845 when there were means to pay.] There were no Courts, except the Sheriffs’ Courts, for debts below 40s.; and, above 40s.—In the Superior Courts you could not imprison where the debt was under £20? Just so. [This is an error; there were Courts of Requests, Borough Courts, &c.]—But under the County Court system, imprisonment for debt has been re-established down to any amount, however small? Yes.--Do you draw any limit at all with regard to the amount for which you imprison? No, I do not ; I confess that I am at a loss to understand any principle on which any objection can be taken to committing for small sums ; I should say that, of the two, a man was more to be pitied for being committed to prison for a debt of £1 than a man who is committed for 1s. ; if you were once to say you would not commit for sums, say, under 3s., the effect would be that all the defendants would pay, leaving a certain balance ; in fact, you would make a 100 On County Courts. deduction from what every plaintiff received, and if the original amount was 10s. you would be deducting 30 per cent.—Does not that show that imprison- ment is regarded as a preventive of non-payment? I wish to say quite frankly that if you are to have the maintenance of the present system of credit, you must have also imprisonment for debt.” 1488. ‘‘ But that last answer of yours must be taken with what you added to it ; namely, that if imprisonment for debt were abolished, you think credit, which you consider is, on the whole, very mischievous, would also fall with it? Yes.” There are several errors in these answers :—Ist. The new County Courts were not designed to deal with mere contentious business, but to supersede the various Small Debt Courts and to establish a general system. The very title of the Act establishing the new Courts is: “An Act for the more easy recovery of Small Debts and Demands” [August 28, 1846], and there are many lawyers who wish to reduce these Courts to their original jurisdiction, The extensive powers they now possess have arisen from the general recognition of the extensive usefulness of the County Courts. Public opinion, excluding that of many lawyers, has made them what they are. The extension of their jurisdiction to £50 was petitioned for throughout the kingdom. To recover small debts and demands was their original purpose, and the very limitation of fees payable to advocates is some proof that contentious business was not much thought of; nor, indeed, could it have been, for the original jurisdiction was limited to £20. The collection of small debts is not a fungus which has grown out of the system. The writer was present in Grafton-street when a deputation waited on Lord Brougham, and shop books, similar to those so well known to Judges of County Courts, were produced, in order to prove the vast number of accounts in which the assistance of local Courts was necessary for the collection of debts. Contentious cases were not the subject of discussion. The following remarks, contained in the Saturday Review of May 10, 1873, are very accurate :— It is quite true that there is still imprisonment fordebt ; but there are not, or at least by law there ought not to be, any destitute debtors in prison. It would be more correct to say that the Bankruptcy Act abolished imprisonment for in- ability to pay debts than that it abolished imprisonment for debt. Debtors are still liable to be put in prison, but only on the ground ‘that they are able to pay their debts and yet will not pay them.” We are not aware on what authority the Times makes the assertion that destitute persons, and even paupers in receipt of parish relief, are now imprisoned for debt, but certainly nothing can be more contrary to the express directions of the law. The fourth clause of the Act for the abolition of imprisonment for debt sets forth ‘‘ that, with certain exceptions, no person shall be arrested or imprisoned for making default in payment of a sum of money.” The exceptions relate to default in payment of a penalty or sum recoverable summarily before a justice of the peace, default by a trustce who has been ordered by a Court of Equity to pay any sum under his control, default by an attorney to make any payment On County Courts. 101 ordered by a Court, and default in payment for the benefit of creditors of any portion of a salary or other income as to the payment of which a judicial order has been made. In regard to small debts [i.e, not exceeding £50], it is enacted, that a debtor may be imprisoned only when it is proved to the satis- faction of the Court that the person making default has, or has had since the date of the order or judgment, the means to pay the sum in respect of which he has made default, and has refused or neglected to pay the same. There can be no doubt, therefore, as to the meaning of the law. Whether the law is correctly interpreted in all cases is of course another question. If it can be shown that any Judges of County Courts [or, of the Superior Courts] are in the habit of sending to prison destitute debtors, that may be a very good reason for calling for a more satisfactory administration of the law, but itis clear that the law itself is not to blame. It is perfectly certain that it is illegal to imprison debtors who are simply unable to pay their debts. The proceedings of the Select Committee of the House of Commons, appointed July 7, 1873, to inquire into the subject of imprisonment for debt by County Court Judges, were chiefly remarkable in being directed against the trade of Scotch drapers. The Committee, with equal propriety, should have investigated the adulterations alleged to occur in the wine, spirit, and beer trade, or into the frauds of grocers and of other traders. Indeed, the com- mercial operations of the tea trade, as being an article the poor largely buy, might have claimed their attention, and, in this instance, with some success, seeing that among poor women tea has become a “necessary,” and that on Oct. 5, 1878, the Times stated “that in July last the bonded warehouses contained ten million pounds of tea absolutely unfit for human food, and that in the last month 370 chests of putrid tea were reported, of which 90 found their way into the market.” Three of the great necessaries of life are food, clothing, and drink. Of these three the attention of the Committee was confined to the sale and purchase of clothing. The two classes of sinners in such dealings were represented to be Scotch drapers who sell their goods to be paid for by weekly, fortnightly, or monthly instalments, and wives of working men, who were alleged to buy clothes for themselves and their families without the knowledge of their husbands; of that class of husbands, chiefly, who too frequently expend the larger part of their earnings in the excessive purchase of beer to the affliction and misery of themselves, their wives and children: the wives struggling to protect the family. “My opinion,” said the late Mr Collyer, J.C.C., “is, as general rule, that the charges which have been brought against drapers, packmen, and others (and I have had great experience in cases of this nature) are very greatly exaggerated, and in very many instances wholly devoid of truth.” [Parl. Paper, No. 209, April, 1867.] 102 On County Courts. “T have not a word to say against the much-abused class, the Scotch drapers, because I find them very amenable to reason.” Mr J. A. Russell, J.C.C. “JT must say I believe there has been a good deal of false sentiment about that class of tradesmen, and a very erroneous impression.” The late Mr Hllis Mc Taggart, J.C.C., Evid. Judicature Commission. “TJ find the Scotch drapers are avery fair-dealing class of men.” Mr Elkington [4,042]. “T find they keep very accurate accounts.” Mr Worlledge, J.C.C. [5,778]. Mr Baines, M.P.: “I believe you have heard that strong reflec- tions have been made before this Committee upon the Scotch drapers as a class?” Mr Adam Brown, Town Councillor of Leeds: “T have read the evidence, which I consider preposterous nonsense : the parties that made such statements must have known nothing of the trade.” “Do you think,” said Mr Shaw, M.P. for Burnley [8,544], “that if imprisonment for debt were abolished, the iniquitous business of these people would be practically put an end to?” “Yes,” replied Myr Wake, solicitor at Sheffield, “we have large establishments in Sheffield where almost the entire business is ready money.” Where is legislation to endif ill-informed persons are to govern ? Newspapers must be paid for before they are had, or otherwise at the end of the year hundreds will refuse to pay for them. There are to be no credits, and this will enable shopkeepers to economise in their establishments by getting rid of clerks. As there will be no bills, there will also be great economy in paper now used to write out bills, and shop books will not be needed. Perhaps a Committee of the House of Commons may report on the inutility of arithmetic and the economy of not teaching it. Buying and selling among the millions are to be reduced to cash transactions. ‘Credit is to be unknown,” cheques, bills of exchange, and promissory notes are for ever to disappear. Cash transactions will need no protection and coin will abound ! Sir Henry James, Attorney-General, asked: ‘‘If you (Mr E. Davy) [p. 274] did not give credit you would not have to take money out of other people’s pockets and other customers would get their goods cheaper, would they not? M€r Davy : I do not quite see that.—But you have admitted every step of the argu- ment ; how do you see it yourself? There are occasionally bad Rabie made in every trade.—But you have admitted that if there were no credit there would be no bad debts? Very well.—And if there were no bad debts you would not take so much out of the pockets of other customers; now if there were no credit would not other customers get their goods cheaper? Yes, I think that is so. If all business could be done on cash terms it would be better for every- body concerned of course.” —[6,507.] On County Courts. 103 The following replies made respecting the business and goods of Scotch drapers, are interesting: though in the trade there may be some who prefer a short-lived business in inferior articles to an enduring reputation, as in all other trades. Yet this should be remembered, namely, that women are able very accurately to know what clothing is good and what clothing is bad, and what is the proper price. When women deal in grocery or tea, or men swallow what causes them to be almost mad, they may not know what they purchase. In the former case, a Committee of the House have less knowledge than the women, and in the latter cases no Committee will be appointed. 4302. Mr Baines, M.P. : ‘‘Do you know what is the general class and quality of the goods supplied to their customers by the Scotch drapers? Mr Browne, a Town Councillor of Leeds: As I stated at the commencement, they are the very best that we can purchase ; with regard to woollen cloths, we buy as many Scotch tweeds as we can, because they wear well: we order nothing but what we think is of substantial value ; we are forced to do this, otherwise we should soon lose our connection: I have families doing a good business who have traded with me for thirty-seven years.—Would competition beat you out of the market, do you think, if you did not supply good articles? Very soon.— That is to say, the competition of other drapers, English and Scotch ?—Yes, certainly. —Have you any testimonials from manufacturers and merchants of great eminence in Leeds and Yorkshire with regard to the quality of the goods so extensively sold by the Scotch drapers? I have fifteen testimonials from the first houses in Manchester, Huddersfield, and Bradford, testifying that they supply the Scotch drapers throughout England with the best articles that they have. With the permission of the Committee, I will read one letter from Mr Wright Mellor, the Mayor of Huddersfield, with regard to that.—I believe that he has been Maygr of Huddersfield two or three times, has he not? Ido not know, but he is a large merchant ; he says: ‘I am in receipt of your letter of the 16th instant, requesting my attention to the Select Com- mittee now sitting respecting the question of imprisonment for debt, and stating that it 7s well understood that the object of all this is to strike a blow at the Scotch trade. Now, I should scarcely think that any intelligent Member of Parliament conversant with the facts of the case in relation to that business, would for a moment contemplate any such step, for I consider such a course would not only revive the mischief of class legislation, trying to injure one class for the benefit of another, but it would likewise inflict a serious injury upon the working classes themselves. As a manufacturer and mer- chant, I have had thirty years’ experience of the Scotch trade, and have seen its operation in many counties in England and Wales, and am convinced that the labouring classes could not have been anything like so com- Sortable, had it not been that the system of the trade enabled them to pay for their purchases by weekly or fortnightly instalments ; and, in addition to this advantage, they get substantial and useful articles of apparel; I know it has been sometimes represented that the Scotch draper sells to his customers goods that are not adapted for use, but are showy and unsubstantial. Now you may depend upon it that these statements are made by people who do not thoroughly understand the trade, and who really do not know what they are talking about. In reference to our own department of business, during my thirty years’ experience, it has been an invariable and leading requirement that the goods purchased by us should be substantial; this is the very first test we apply to 104 On County Courts. them, and if they do not possess that quality they are invariably rejected. Indeed if we acted otherwise, our trade could not survive, and we should very soon lose the whole of our connection. Speaking generally for my own department of business, I fearlessly assert that the Scotch drapers sell as sound and useful a class of goods as any other class of tradesmen in the kingdom who deal with the same class of customers. If I can furnish you with any other information which can be of service to you I shall be happy to do so.’ There are likewise testimonials from Manchester, Bradford, and about twelve other of the best houses that have done business for thirty or forty years with Scotch drapers.-— Have you heard that it has been stated before this Committee that the goods which are sold by the Scotch drapers are often worthless goods? Yes; I know that it has been so stated. 4308. Have you heard that it has been stated by one of the witnesses that the goods sold by that class of persons are sold at prices 50 per cent, above their real value? Yes; it has been so stated.—In answering my questions you do not profess to go into every part of the question, but you do speak with regard to the substantial value of the goods sold by the Scotch drapers? Yes, I am quite satisfied that they are of as good value as can be purchased anywhere.—In fact, the goods are purchased from the best manufacturers in Yorkshire and Manchester? Yes.—And that they have been so purchased, you have testimonials in your hand from gentlemen who say that they have had their attention called to the statements made before this Com- mittee, some of them having had sixty years experience of Scotch drapers ; there is Messrs Rylands and Sons, who state that they have had fifty years experience; Messrs Luccock, Lupton, and Co., who have had forty years experience ; and Messrs M‘Lauren and Co., who have had twenty-five years experience? Yes.—You have the original letters in your hand, I believe? Yes, I have.” Mr Brown stated to the Committee that there were 50 Scotch drapers in Leeds. At the close of the year 1872 their book debts were about £105,663 and their stock about £20,000. They esti- mated their customers at about 100,000. The number put into Court was 2,663. There were 188 commitment summonses, and 18 defendants were sent to prison, of whom five were released: 13 were imprisoned for the term of 10 days. The number of plaints entered at Leeds was 17,964, and of this number the pro- portion of Scotch drapers’ plaints was less than 1-l0th. Of the 50 masters in the trade 10 entered no plaint atall; 12 only exercised the power of imprisonment. There is a Northern Drapery Associa- tion [4,319]. They have 92,037 customers; their book debts are £133,001, their stock £29,968; they had invested £162,968, and their receipts from customers, in 1872, were £138,588, of which £1,729 came through the County Court. They had 1,825 plaints in the County Court of Liverpool, 82 judgment summonses, 54 orders of committal, and 9 cases of imprisonment. At Wallsall three- fourths of the whole trade was for men’s clothing, and at Manches- ter the amount paid by Scotch drapers, in 1872, to tailors for men’s clothing was £37,000. At Wallsall eight defendants were sent to gaol in three years. Mr Brown thought imprisonment “ has a very beneficial effect in keeping men honest; honest men, it was said, are not required to be sent to prison, but it is a fine thing to keep On County Courts. 105 them honest; the fear and the knowledge that they might go to prison causes them to remain honest. If imprisonment for debt were done away with, many men would set you at defiance, espe- cially if you had had a quarrel with them.” Mr8. Hyslop, Mayor of Newcastle-on-Lyne, said: ‘‘Speaking from my own experience, and that of my fellow tradesmen where I live, I can state that the goods are of the best quality, and the best material and stuff that could be purchased and bought of the most respectable firms.”—‘‘ You speak of textile fabrics for clothes? Yes, for clothes. Yorkshire and West of England goods are principally purchased at very long prices. In Bradford there are stuffs specially manufactured for the Scotch drapery trade, very heavy in texture. Seventy-five per cent. of my trade is for men’s and boys’ clothes. I had eight tailors and one foreman, and had had for many years ; and others are similar to myself. I have a letter here speaking of the quality of the material bought from several firms, and one particularly, from Messrs J. and N. Phillips and Co. Isuppose honourable Members are aware, that a member of that firm is also a Member of this House. In reply to a letter addressed to Messrs J. and N. Phillips, they state, ‘In reply to your communication of this date’ (that is April 16th, 1873), ‘calling our attention to the terms ‘‘showy, tawdry, and worthless,” as having been generally applied in evidence before a Select Come mittee of the House of Commons, to the goods sold by Scotch drapers, we have to say that our experience completely contradicts such a statement. We have a large number of traders of this class amongst our customers, and it is observed that they purchase almost exclusively of shawls, woollens, silks, and dress goods, often of the best quality. We cannot but think that the words quoted have been thoughtlessly used, and are most unjust in their application to a whole body of tradesmen, numbering amongst them many upright and respectable men.’”—-‘‘ That is the old firm of Messrs Phillips, in Manchester, of whom Mr Phillips, the honourable Member for Bury, is one of the firm? Yes. There is another letter from Messrs Anderson and Thorburn, of Manchester, to the same effect, and there are others.’—‘‘ Are the other letters of a similar character to that which you have read? Yes.”—4539. ‘‘And are the houses of similar rank? Yes; they are houses of a similar character, but some would represent woollen goods.”—‘‘ But the opinions that they give with regard to their customers among the Scotch drapers are nearly alike, are they not? Yes ; they are similar to the one which I have read.”—‘‘That is to say that they are respectable in their character and their dealings? Yes.”—‘‘ And that the goods which are used are not showy, tawdry, and worthless goods, as has been alleged? No.”—‘‘ Are the goods sold by the Scotch drapers among the most useful articles of clothing used by the working classes, and by the classes above them all over the country? What I should consider showy, tawdry, and worthless goods could not possibly be sold by the Scotch drapers, or kept in stock; they would ultimately remain in their warerooms or shops, and become bad stock ; that is my experience.” 4555. Do you know of any instances in your experience of goods having been purchased by Scotch drapers at 6d. per yard, and sold retail at 2s. 2d. per yard? Never in my life. Mr Wake's Evidence [8464]. Or anything approaching it? No.—Do you know of charges being often made that are 30 per cent. above the proper and just price of the goods? That I most entirely deny ; and if any one has made that statement he has stated to the Committee what is wrong.—Chairman: That is as far as your experience goes? Yes; I have had large experience; but I think a person stating that kind of thing ought to give the names of the persons. I should be most happy to give information which will prove the accuracy of my statement.—Ur Baines: Did 0 106 On County Courts. you ever know of a case of a shawl being sold by a Scotch draper at 30s., which might be bought of a retail draper in the town for 9s? No; I never knew of such a case.—Do you believe that such cases are at all common? No; I do not think that one case in England could be found of that kind. I challenge the gentleman who made the statement to prove that.—Could that kind of thing exist, seeing what competition there is among your class of tradesmen ; and if they did things of that kind, would not the buyers find it out? Such is the amount of competition in our trade, as well as in other drapery trades, that no tradesman whatever could keep his standing, either with a connection of customers, or in his neighbourhood, if he were to charge anything like such a scandalous price. The answers of Mr Worlledge, J.C.C., were: 5794, Mr Baines: With regard to those packmen, is it not the case in many instances where the population is very thin, and where there are very small agricultural villages and hamlets, that it is a great convenience to the popula- tion to have brought to their doors the goods which they want? Mr Worlledge, J.C.C.: Yes, I think it is. I know a lady in [pswich who has a good deal to do with the working classes, who says, she does not know how some of them would be clothed if it were not jor the packmen,—It is not with agricultural labourers and men who work out of doors, as it is with men who work in large mills and workshops, that they can carry on‘their work in all kinds of weather. If there is a severe winter, or an inclement season, they do not receive their wages? No, just so; they lose time.—Under those circumstances they are compelled to get into debt; is it so or not, that they then are compelled to take credit? Yes, certainly.—And afterwards they pay their debts by instal- ments? Yes, I quite endorse that.—You think that is not only convenient, but necessary to them? Yes; I have no doubt at all about it.—You stated that in the year 1870 in the Ipswich County Court there were 3,300 plaints, and only eight persons imprisoned? Yes.—Is that one imprisonment for every 412 plaints? Yes.—In the year 1871 the number of plaints was 2,709, and there were eight imprisonments? Yes. The following list of the trades and occupations of plaintiffs in 1,000 consecutive plaints entered in Swansea County Court in 1873 is fairly made out: Drapers. : . 231 ; Money-lenders . 211 Grocers ‘ : . 279 | Bootmakers ; ~ 19 Ironmongers. . 10 | Blacksmiths ; . 10 Victuallers ‘ . 18 | Merchants . : . 48 Hauliers’ . ‘4 . 4 | Potato Merchants . 6 Brewers. : . 24 | Coppermen, Colliers, Butchers. , . A? Labourers, Ship Car- Pawnbrokers. g oe penters, Painters . 19 Tobacconists ‘ . 4] Miscellaneous. » 223 Printers and Stationers 11 — Bakers : : . 14 1000 Jewellers. ‘ . 15 — The next class of alleged unfortunates whom the Committee of the House of Commons affected to take under their protection were On County Courts. 107 husbands whose wives it was represented incurred debts without their knowledge. “The man said, ‘the woman whom thow gavest to be with me SHE gave me of the tree and I did eat.’” So says the cowardly man of to-day: “My wife got the clothes wherewith she clothes herself and even has provided for me, and which covers the nakedness of my children and I could not see ee she did nor know of it: she took all even if I have partaken of it.” As the excuse is said to be common and is similar to that which was the first made by man in the perfection of his creation, it may be asked: “Has it usually been blameless and is it always true?” The lawyers on the Committee defend the man who wants know- ledge of what passes in his own household. There were 103,172 men convicted of being drunk and disorderly in 1872. Among these were, no doubt, many working men receiving good wages who have persistently opposed their poor struggling wives in discharging debts which they necessarily contracted. The following inquiry was made by Mr Cross, M.P., of Mr Worlledge, J.C.C.: 5529. It has been stated to this Committee that a vicious system of credit has sprung up under this power of imprisonment for debt; is that your opinion? No; it is not my opinion.—Speaking from your experience with regard to the credit given in your district, is there anything to lead you to suppose that the present system of credit is a vicious system, presuming the word. ‘‘ vicious” means too.extended? No; I have no reason to suppose that itisso. I dare say that a woman sometimes buys an article of dress which she might not have bought if she had to pay for it on the spot; but a good many do that in the higher classes of society.—But you have noticed no vicious credit, have you? No.—Do you think that the law requires alteration with regard to the power of the wife to pledge the credit of the husband? If the Judge does his duty, the law is sufficient as it stands, and there are few cases in which the husband is in ignorance.—You think that there are very few cases in which the wife pledges the husband’s credit without his know- ledge? If the Judge does his duty he would find it out, unless there be abso- lute perjury. I found out, some five or six years ago, a system which I put a stop to ; that is to say, some of those Scotch drapers taking orders at the house of the debtor, or perhaps in aneighbour’s house, and then executing the orders and sending the goods in a mass for all the customers to some public-house in the neighbourhood, so that they might not get within the sight of the hus- band. In many cases these goods were pledged by the wife, and that was how I discovered the system.—Was that a common practice, do you think? No; it was stopped. What was thus stated other Judges could confirm—that is, that other districts are not subject to what is called “vicious credit.” It is not the interest of sellers of goods to hazard the loss of their value. The conduct of the drapers he refers to must have been exceptional; but the County Court protected the husbands. 108 On County Courts. Mr Baines made these inquiries of Mr Richards, M.P., of Swansea : Admitting that there may be a hardship sometimes on the husband. I want you to consider whether there may not be in a much greater number of instances a hardship on the tradesman. .Let me ask whether it is not the custom among the working people for the wives to conduct the family and to make all the purchases? A/r Richards, M.P.: No doubt.—That is to say, the wife purchases the necessaries of life, both food and clothing, and almost everything that is used in the family? Yes.—The husband gives her part of his money, and the rest of the wages is often spent in drink? I do not think that I should be correct in describing that as the operation in the district in which I live. I believe that the workman gives the bulk of his earnings to his wife as a rule, and the wife expends them in very many cases most judi- ciously.—I am very glad to hear that, because then if you put a stop to the wife making those purchases you would put a stop to the feeding and dressing of the family? That could not be done.—But where that necessary process ios been gone through, and the wives have made their purchases for their husbands and children, and their households, as well as for themselves, do you think the husband who has entrusted to, the wife the making of those purchases should not be liable for payment? Certainly, he would be liable for payment, and I have no doubt where the woman spends the money in that way, in the very large majority of cases he never refuses to pay. Mr Hyslop, the Mayor [1873] of Newcastle-under-Lyne, repre- sented the practice of selling goods to be as follows: 4752. Do you mean to say that you would not sell to the wife unless the husband were there? Mr Hyslop: No, I would not trust any man’s wife unless [ had the security of the husband first. It is the principle adopted by the trade at Neweastle-under-Lyne that the husband shall have personal knowledge of the debt.—Is that principle adopted in every case? I do not say that it is so in every case, but it is so in my own trade, and mine is not an exception to the general rule-—You send the goods by carrier, you say ; are they addressed to the wife or to the husband? ‘You often send them to a place of call; you send perhaps forty packages at a time, and they send for them to that place.—Therefore the wife may get the goods away without the husband.being aware of it, may she not? If it was something that was exclu- sively for the wife there might be something like concealment; but if I saw concealment I should say at once, ‘‘ That party intends defrauding me of my goods.” The County Court Judge will not let us recover in a case where the wife has been trusted in that way. The Judge would not give usa verdict for a shawl, or if the shawl] cost 10s. he would give you a verdict for 5s., for being so stupid as to trust the wife without the knowledge of the husband.— Even in ordinary articles of dress? Yes, even in ordinary articles of dress, if the Judge knew that the woman had contracted the debt without the hus- band’s knowledge, unless it was for blankets, or something absolutely neces- sary for the house.—But what would the Judge do if it was a dress for the wife herself? He would refuse judgment at all; or if it was for a shawl, he would follow the same principle.—Is that the practice in your District County Court? Yes, that is the practice in our County Court. The law needs no change. The husband has the most perfect protection that can possibly be given to him :—it simply depends upon the use af his own tungue. On County Courts. 109 In the case of Jolly », Rees, Chief Justice Erle said: ‘‘The plaintiff raised a presumption of the defendant’s liability, by showing that the goods were ordered by defendant’s wife for the use of herself and children, while living with him. The defendant rebutted this presumption by showing that he had forbidden his wife to take goods on his credit, and had told her if she wanted money to buy goods she was to apply to him for it, and there was no evidence that she had so applied and had been refused. The plaintiff proved in reply, that the goods were necessaries suitable to the estate and degree of the defendant, that the wife had £65 a-year, and that the defendant had pro- mised to allow £50 a year in addition, but had not paid it regularly, and had not supplied her with such necessaries, or, with money sufficient for the purchase thereof. The plaintiff also showed that he had received zo notice of the defendant’s prohibition to his wife to take up goods on his credit. These facts were in effect found by the jury, and the question was raised: Whether the wife had authority to make a contract binding on the husband for necessaries suitable to his estate and degree, against his will, and contrary to his order to her, although without notice of such order to the tradesman? My answer, said the Chief Justice, isin the negative. The wife cannot make a contract bind- ing on the husband unless he gives to her authority, as his agent, to do so... . Taking the law, he said, to be that the power of the wife to charge the hus- band is in the capacity of being his agent, it is a solecism in reasoning to say that she derived her authority from his will, and at the same time to say that the relation of the wife creates the authority against his will, by a presumptio Juris et de jure from ee ; and if it be expedient that the wife should have greater rights, it is certainly inexpedient that she should have to exercise them by a process tending to disunion at home and pecuniary distress from without. The husband sustains the liability for all debts; he should therefore have the power to regulate the expenditure for which he is to be responsible by his own discretion and according to bis own means; but if the wife, taking up goods from a tradesman, can make her husband’s liability depend on the estimate by a jury of his estate and degree, the law would, practically, regulate his expenses by a standard to be set up by that jury —a standard depending upon appearances—perhaps assumed for a temporary purpose with intention of change. Moreover, if the law is clear, that the husband is protected from the debts incurred by the wife without his authority, not only in the ranks where wealth abounds would speculations on the imprudence of a thoughtless wife be less frequent than they are, because less profitable—but, also, in the ranks where the support of the household is from the labour of the man, and where the home must be habitually left in the care of the wife during his absence at his work—1ore painful evils from debts which the husband never intended to contract would be avoided.” On this case the writer printed and circulated the following comment, being part of a fuller exposition of the law :— “The opinion of that most able Judge, Sir William Erle, the late Chief Justice of the Common Pleas, and of the Judges of the Court of Common Pleas who concurred with him, in the case of Jolly v. Rees, 15 C.B., 628, there can be little doubt, will be treated as the truest exposition of the law as it is of morals. This case does not disturb the general rule, that the wife may bind the husband in the purchase of necessaries; but it does limit the operation of the rule when the husband has refused to her permission, as his agent, to purchase on his credit, even though the refusal is 110 On County Courts. unknown to the tradesman. I can only repeat what I said on a former occasion, namely : the only safe course in dealing with the wife is to inform the husband that his wife has proposed to pledge his credit for goods and to ascertain from him that he assents to his wife purchasing goods in his name and pledging his credit for pay- ment ofthe same. I have also constantly given this general rule of dealing to plaintiffs—‘ If one person purchases goods, and another is represented as the person who is to pay, apply to such other person without delay and ask if he assents to pay.’ So, in order to be safe, this rule of virtue, of safety, of prudence, and of morals, may be extended to all cases, and it should be especially acted on, by directly asking the husband if he approves of his credit being pledged by his wife? There is nothing but what is fair and just and proper in such acourse. It should also be remembered that the wife has only the authority of an agent for her husband and it is in the power of the husband expressly to revoke that authority at any time. He is the master of his own household, and of his own purse, but he would not be master of his own purse, nor of the liberty of his own person, if, when he permits one dealer of goods to supply necessaries to his wife, the law enabled four or five other persons at the same time, engaged in a similar branch of trade, to supply, as is frequently done, what they may call ‘ necessaries’ without his consent. Avy person, however, who has recognised the ‘ dealing’ on credit of his wife with a particular tradesman, must give express notice to such tradesmen when the authority of his wife to charge his credit is to be revoked by him. Those persons who desire a new law ‘to pro- tect poor people,’ should understand that poor people have, at this time, the most perfect protection. By their own act they can revoke the authority of wives to pledge their credit. If the husband has never authorised any dealings with a particular tradesman, he can revoke his wife’s authority without notice, though some public notice shows the bona fides of the revocation. When he has sanctioned any such dealings, then notice of the revocation of the wite’s authority to continue to deal with such tradesman on credit must be expressly given to the tradesman. The husband has perfect power to protect hamself, and no tradesman is safe in dealing on credit with any married woman unless he informs the husband that his wife has proposed to pledge his credit.’” In Scotland, husbands may protect themselves from debts which may be contracted by their wives by expeding a simple process in the Court of Session called ‘“ inhibition,” which is recorded and pub- lished in a newspaper. A husband can even do so the day after marriage. [Bell's Law of Scotland, p. 580, 5th Ed., 1860.| Her wings are thus clipped. , On County Courts. III 2669. Mr Bass, M.P.: Then do you really think it is worth while to con- tinue to incur all the evils of our present system (2) including the power of execu- tion as well as the power of imprisonment for debt? Mr E. Patchitt : Yes, I do, indeed ; because in the whole town of Nottingham 70,000 people are more or less supplied on the credit system, and I only see the exceptions which are brought before the Court to compel an unwilling debtor to pay ; it would be exceedingly hard to deprive the trading community of a reasonable source of live- lihood, because the few do not fulfil their obligations.—You have stated that your Judge will not make an order in such cases as those in which fine dresses and unaecessary articles are bought by the wife’s pledging the husband’s credit ? Just so; I would correct that by saying that not only the Judge but the law will not make such an order.—Would the Judge imprison for necessaries where the husband was not cognisant of the order being given? Yes, and I think most humanely so. I think it is the law which gives the authority. It humanely enables the wife to pledge the credit of her husband for necessaries. If it were not so, and if the wife had not that power, I believe great distress would frequently be felt in families, both by the wives and children where they have improvident or unsteady husbands and fathers.—Is it frequently the case that the husband is sent to gaol when he has no knowledge whatever of the articles being purchased perhaps? No, I believe the case is very rare where the husband has no knowledge of the articles purchased ; he must have know- ledge of the fact. The question very often put is, ‘‘Have you not seen your wife wear that frock, or the children wear those boots?” He replies, ‘‘ Yes.” Then the Judge says, ‘‘Did you provide the money?” He replies, ‘‘ No.” Then the Judge says, ‘‘ You must have known that your wife obtained those goods on credit.” In my experience in the bulk of cases men do know that their wives have had the goods, and for that reason. The Select Committee of the House of Commons stated in their Report that the following reasons had been given in defence of Imprisonment for Debt : “That, according to our present habits and customs, credit is as much a necessity for the poor as it is to the rich: That the poorer classes cannot get on without it: That it is life and death to the million: That if imprisonment for debt were abolished it would tend to destroy much of that credit which is now indispensable to them, or raise its price to their disadvantage in order to meet the increased risk: That on either supposition it would operate injuriously to the working classes, especially in cases of casual sickness or want of employ- ment: That it is only in the event of the debtor refusing or neglecting to pay, when he either had or still has the means of paying, that the warrant is issued : That where such a fact is proved, there can be no hardship in sending him to prison: That sometimes debtors refuse to pay, although they have the money in their pockets, until the law is actually put in force: That where the warrant is issued, the Judges endeavour to inquire carefully into such of the circum- stances as are brought before them, and if any facts are not ordinarily discover- able under the present practice, that is a reason for amending the law, rather than a reason for superseding it altogether: That if imprisonment were at once abolished, many an obstinate or dishonest debtor would contrive to evade the due discharge of his just obligations: That it is the apprehension of this imprisonment quite as much as the imprisonment itself which enables the creditor to enforce his rights: That it is impossible to measure the deterrent effects of such a law merely by the number of those cases in which the power of commitment is exercised: That in such cases a writ of execution against the goods of the debtor would be no remedy at all, since, ordinarily speaking, the 112 On County Courts. debtor has no goods which could be taken beyond what the law would except from the levy: That the abolition of imprisonment for civil debt in Scotland is no precedent for a similar change in the law of England, since the provisions for the recovery of civil debts in Scotland above £8 6s. 8d., and even for debts of less amount than £8 6s. 8d., especially as regards the process for the arrest- ment of wages, are more extensive against the debtor than the provisions in the law of England: That no just conclusion can, therefore, be drawn from this comparison: That the great majority of the County Court Judges are in favour of maintaining the present law, upon the ground that Credit is absolutely neces- sary to the working classes ; and in their opinion the Retail Traders would no longer give that credit if the power of enforcing or compelling the payment by means of imprisonment were taken away.” There is an-omission in these statements of all notice of the failure of the experiment in 1845, mentioned in a former page. In this month of November, 1873, a young man, unmarried and earning between £9 and £10 a-month wages, attended on a bailiff at Aberdare to be arrested, and invited arrest in order to discharge a debt he could easily pay, knowing that by imprisonment he might avoid its payment under the decision of the Court of Common Pleas [ante, p. 93]. The Select Committee on Imprisonment for Debt reported to the House of Commons the following Resolutions : 1,—That the administration of the law relating to imprisonment for debt by County Court Judges is unequal and uncertain in its results, [Inequality and uncertainty of effect accompany all punish- ments. | 2.—That the mode of procedure on judgment summonses does not ensure sufficient evidence of the means of payment of the debtor, especially with regard to his indebtedness to other creditors, being brought before the County Court Judge before making an order of commitment. [It is the fault of the debtor not to attend the Court and show the extent of his indebtedness. No person can accurately prove it but himself. Any insufficiency of the evidence is caused by the silence of the debtor. | 3.—That the numerous commitments to prison in default of payment of small debts entail an expense upon the taxpayers and ratepayers of the country, which it is unjust and inexpedient they should continue to bear. [It is certainly not unjust that the performance of contracts should be enforced by law. If it is thought to be unjust, what are the reasons for the opinion? If committals are inexpedient, let some other efficient method be suggested, in order to enforce the fulfilment of contracts. It is essentially necessary that lawful contracts should be performed. As regards the expense on tax- payers and ratepayers it is unavoidable. Poachers and thieves might be excused if the expense of punishment were regarded: game is a luxury. The expense of detaining a debtor in gaol is six shillings a-week; the average time of detention should not exceed On County Courts. 113 fourteen days. The number of persons detained in the year 1872 was 6,899, or a cost of £4,139 a-year on an average committal of fourteen days each : a very small sum remembering the large amount of money it secures the payment of among many millions of persons who are indebted. Mr Elkington [4,078] states that the cost per head in the borough gaol of Birmingham is five shillings a-week, and in the county gaol sixpence per head per day, and that the governors of these gaols gave to him these figures. On this point the Committee failed in proving their assertion of a financial grievance. The expenses of conveying prisoners to gaol will be men- tioned hereafter under the head of “ Expenditure” [and infra, p. 117. ] 4,—That there is inequality in the law in relation to the remedies against debtors for large and small sums, which presses with undue [2] severity upon. the latter. The inequality is this: When a man is a bankrupt he is utterly ruined and is reduced to poverty, and the man who can pay his debt and will not is pressed to pay. The Debtors Act of 1869 fails to deal with the real difficulty, namely: What is to be done when there are old and recent judg- ments and new debts are inevitable? Who is to have priority ? The effects of the accumulation of debts and the necessity of some shorter limitation of the time than at present within which judgment debts may be extinguished, which current wages will never dis- charge, were neglected. So were these important facts disregarded, namely : 1.—That the wages for a week or a fortnight of workmen are, in many occupations, kept in hand by the masters in order to secure the performance of contracts—the performance being as important to the men as to the masters—and that the shopkeepers supply food and clothing to the workmen during the days the part payment of wages is thus suspended—at Merthyr and Aberdare, for instance, to the extent of many thousand pounds. Credit in such cases con- tributes to secure abundance and the means to pay wages. 2.—That in the case of a retail dealer, the wholesale merchant expects to be paid out of the profit on the sale of the goods he sup- plies. When that fond is wasted, or bad debts interrupt the business or ruin befals the tradesman, the source out of which payment was expected is gone. Bankruptcy is then inevitable. 3.—That when credit is given in respect of income, salary for services, or wages, so long as a portion of these sources of income is applicable to the payment of debts the fund which authorised the credit exists. If the fund or source of income in respect of which the credit is given remains, why should not payment of the debt be enforced? And what is meant by the words “‘ undue severity ?”’ p Tia. On County Courts. 5.—That the frequency of the commitments to prison of the same debtors shows that imprisonment for debt is not always deterrent to the dishonest debtor, whilst it often inflicts unmerited punishment upon the honest debtor. [How is the honest and the dishonest debtor distinguished, seeing that neither is imprisoned unless being able, he refuses to pay? Some, but not all, debtors refuse to pay though imprisoned, but this particular statement does not authorise the inference that all wko are imprisoned, or the majority of them, or thousands who are not imprisoned, are not deterred. ] 6.—That in many districts of England and Wales debts are contracted, and an undue and unnecessary amount of credit given, often [i.e., but not always] without the knowledge of the principal debtor, and it is expedient such dealing and credit should be checked. [This subject has been dealt with in the foregoing pages, p. 108. ] 7.—That in giving the credit mentioned in the last resolution, the creditor to a great extent relies upon imprisonment for debt asa means whereby, in case of default, he will be enabled to recover the amount due to him. [No man desires to throw away his goods and credit is the off- spring of laws which give security in the business of life. ] 8.—That it has been proved before your Committee that, in Scotland, there is no imprisonment for civil debt under £8 6s. 8d.; that the wages of labourers, farm servants, manufacturers, artificers, and workpeople are protected to the extent of twenty shillings a week from arrestment to enforce payment of their debts, and that, notwithstanding these circumstances, modes of dealing have sprung up so that all necessary and proper credit is given to them. But in the law of Scotland the provisions for the recovery of civil debts above £8 6s, 8d. ; and for debts even under £8 6s. 8d. the provisions as to execution are more extensive against the debtor than the provisions in the law of England. [It was not possible for the Committee to have ascertained what is “‘necessary and proper credit.” The working men in England will not submit to the arrestment of wages and even now those who have to satisfy judgment debts had rather be imprisoned than suffer the evils of an execution against their goods. | 9.—That upon the hearing of any judgment summons, the Judge should inquire whether there are any other debts, and the debtor should be required within such time as the Court may direct, to deliver in a full and true account of all the debts due from him, and of his means of payment, and the Judge should make such order for payment of the same, either in full or by way of instalment, or by an execution against the goods of the debtor, as to him should seem just. 10.—That such sums of money as are ordered to be paid, and the produce of such sales as are made under an execution, should be brought into Court, in order that the same may be distributed rateably among all the creditors. [These two resolutions can never be acted on.] 11.—That the County Court Judge should have power to commit for non- payment of damages or costs in trespass and other tortuous actions, inde- eae of the debtor's inability to pay, but such power should be exercised only once. On County Courts. 115 [This merely means that judgments for damages in cases of torts shall be reduced in practice to imprisonment without compen- sation to persons who may be grievously injured. ] 12.—That such of the provisions of the Debtors Act, 1869, as relate to fraudulent debtors should be revised for the purpose of extending the same, as far as may be necessary, to persons against whom an order on a judgment debtor summons may be issued. 13.—That on the recommendations of the Committee being adopted, it is expedient that the power of imprisonment for debt, as now exercised by the “County Court Judges [and Superior Courts ?] should be abolished. 14.—That inasmuch as the system of credit at present regulating the course of dealing between tradesmen and persons of small means would be materially affected by the changes in the law recommended by the Committee, it would be expedient that any new Act to give effect to them should not come into operation until a reasonable time has been afforded to enable those affected by it to adapt their mode of dealings to its provisions. . Mr Cross, M.P., proposed before Resolution 13 was passed, “That no Imprisonment should take place when the debt upon which a judgment had been obtained is of older standing than three years.” This proposal is to be commended, but the amount of such debts should be under a fixed limit. It was voted for by Messrs Cross, Salt, Torr, Norton, Cawley, and Baines; but Messrs Ayrton, Fielden, Cobbett, Stapleton, Fowler, Anderson, Chadwick, and Bass voted against it. Sir H. James, and Messrs Lopes, Q.C., Norwood, MacMahon, and Shaw were absent. “‘The demand that the working classes should be relieved from the criminal penalties attached to conspiracies for the purpose of intimidation or coercion* has just been followed up by a proposal that they should also be enabled to refuse to pay any debts they may incur without running the risk of imprison- ment. Singular as it may appear, a Select Committee of the House of Com- mons has been persuaded to lend its countenance to the second of these propositions. The report of this Committee is certainly a remarkable example of Parliamentary wool-gathering. As an exercise in English composition it is * The privilege of picketting is much desired. In Merest v. Harvey, 5 Taun., 551, Chief Justice Gibbes said: ‘‘Suppose a man has a paved walk in his paddock before his window, and that a man intrudes and walks up and down before the window, and remains there after being told to go away, and looks in . while the owner is at dinner, is the trespasser permitted to say: ‘ Here is half- a-crown which is the full extent of all the mischief I have done.’ Would that be compensation ?”—‘‘ The acts of many persons may together constitute a nuisance which the Court will restrain though the damage occasioned by the acts of one would be inappreciable.”—Thorp v. Bum/itt, L. R., 8 Chan. Appeals, 650. When such acts become a public nuisance and interfere with the security and happiness of families, they become grave offences, which the Legislature is bound efficiently to punish. Ah, but that would be a law against workmen. —But it is only wrong-doers who can be punished. All workmen are not wrong-doers, and we have laws relating to classes such as attorneys, medical men, and against mine owners to protect miners, &c. The weakness of official authority on these subjects has in the last few years been frightful. 1:6 On County Courts. deplorable, and the reasoning is on a level with the writing.” —The Saturday Leview, “The question which should be preliminary to all these proposals of reform remains entirely unanswered. What substitute is to be offered to creditors for the protection which the present law affords them, and to which they are justly entitled. in other words, if imprisonment jor debt is to be abolished, what security issto be taken that small debtors who can pay their debts shall be com- pelled to do so? In the absence of any such security, what is to prevent any such small debtor who happens (as is frequently the case with small debtors) to be possessed of no goods and chattels from cheating his creditors at will and laughing to scorn all the impotent efforts of the law to prevent him? No one we imagine has any special affection for imprisonment for debt in the abstract. Itis simply valued as the only existing means of securing the just rights of a large number of persons who are creditors for small sums of money. An argument ad invidiam is sometimes constructed on the text that only small debtors are subject to impri- sonment, whereas the truer criticism on the situation would be that only the small creditor is compelled to resort to this clumsy and somewhat brutal mode of compelling his debtor to do justice. The creditor fora larger sum can at any rate have recourse to bankruptcy, and, by consenting to share with other creditors, can at least take care that a debtor with the means of payment shall not evade payment altogether. If the benefits of the bankruptcy law can be so extended as to meet the case of small creditors, well and good ; no one would then contend that the small creditor should have a right of imprisonment which is withheld from those who have larger claims. But the possibility of so extending the bankruptcy law is extremely doubtful, and until such extension is effected the present law of imprisonment remains the only protection in a multitude of cases against gross and unscrupulous fraud. It rests with those who propose the withdrawal of this protection to show either that those who possess it are not entitled to it—which, as it is founded on the commonest justice, zt is impossible 10 show—or to propose some efficient substitute for it, which there has at present been no attempt todo. The proposed reform, in fact, is merely the outcome of that transcendental humanitarian sentimentalism which walks with its bead in the clouds and has no eye for such humble and low-lying objects as justice and common sense.”—The Pall Mali Gazette. The following are extracts from evidence given before the Im- prisonment for Debt Committee: . Mr Leech, late Mayor of Derby: “I say that legal means for the recovery of a debt ought to exist down to a shilling.” [3,753.] Mr Wake, solicitor, Sheffield, says: “It is my firm opinion that it would be advantageous to the working classes if the power to recover debts incurred for domestic purposes were actually abolished.” [8,547, 8,552. ] Mr Attorney-General James: “It is better than credit to have a sufficient supply of metallic currency for every one to pay ready money,—it is better for the creditor, and better for the debtor, is it not ?”—Mr Daniel, J.C.C.: “No doubt it is an advantage to have money in one’s pockets.” [5,171.] Mr Bass, M.P., asked: “If fees paid throngh suitors is not an expense to the country aé large though paid by individuals?” [Q. 5,238]. May it not then be asked, if a dinner paid for by a Mem- On County Courts. 117 ber of Parliament is an expense to the Members of the House of Commons at large, or to his constituents ? Mr Bass: “The Act of 1867 exalted the position of County Courts, you [Mr Daniel, J.C.C.] think?” “Yes.”— Have they been exalted since you were appointed?” [p. 224.] Mr Bass: “You [Mr St J. Yates, J.C.C.] have spoken of impri- soning debtors under certain circumstances for obstinacy ?’”’ “Yes, where I see real obstinacy.” —“ You think that a man ought to be committed to prison for obstinacy, do you?” Mr Bass: “ You[Mr Daniel, J.C.C.] have stated that the debtors who come before you are the residuwm of the debtors?” ‘Yes, of the debtors’ paying class.’”’—“ Do you think it desirable to entertain a condition of things which caused the imprisonment of 8,000 people every year [6,899 in 1872] through an expensive legal institution costing nearly £1,000,000 [a anistake]? Do you really mean to say that it is desirable it should be continued for the sake of these dis- reputable residuous debtors P” [Q. 5,269. ] Mr Bass: ‘There are thousands of debtors imprisoned for sums under 5s.” As beggars are most certainly not committed to gaol, the thou- sands must include those who can pay and won’t pay sums under 5s. The return, however, obtained by Mr Bass [Parl. Paper, No. 18, 12 Feb., 1872, p.35] shows, that the number of persons imprisoned when the sum in respect of which default was made exceeded 1s. and did not exceed 5s. was not thousands, but thirty-seven, and probably they loved ale better than honesty. It is probable that in these cases the default was in the non-payment of an instalment, part only of an order to pay a larger sum. Mr Bass: ‘‘ With regard to the expenses of conveyance of a prisoner, from where are they paid?” [1,902] ‘‘Who paysit? MM. J. E. Davis, Police Magis- trate. ‘‘The country.” [1,904]—‘‘It is paid out of the Consolidated Fund (!!) in fact?” ‘Yes, the difference between the proceeds of the County Courts and their cost [for they do not pay their expenses] is all paid out of the common taxation of the country.” The “difference” referred to will be shown hereafter. The expenses of the conveyance of a prisoner to gaol are payable out of fees of 1s. 6d.°in the pound, calculated on the sum for which the warrant is issued. There were 33,823 warrants issued in 1872, and 6,899 were executed. The payments made for the warrants issued are applicable to the expenses of those issued and which are followed by the imprisonment of debtors. . Mr Bass [2,328]: “I am intimately connected with a honse of business which delivers 6,000 to 7,000 invoices every year in amounts under 40s., and they seldom or never go into a County Court: would that surprise youP” Mr Carmichael: “It would, 118 On County Courts. unless I knew it to be an exceptional article.”—Mr Bass: “ But if a man gives credit 6,000 times in the course of the year for debts under forty shillings, and never makes an application to a County Court, is not that really an argument in favour of doing away with County Courts ?” Why not include the Superior Courts in the proposed abolition on the strength of this illustration ? But Mr J. D. Paul [6,038], of Leicester, stated that when this Committee was appointed an order was given at the Court that Mr Bass’s cases should not be proceeded with by execution or imprisonment. There was then a publican and wheelwright against whom three warrants of commitments had been made out: one on account of a debt to a coal merchant which he paid; the second a wine merchant’s which he paid; and he was actually going to pay “Mr Bass’s ” debt. Mr Bass [6,040]: “ Was that order from my agent or from the house itself?” “It was from the agent, I think. It was a debt of £2 16s.: he walked away with the money, and has never paid the debt.” Mr Nicol: “ People would have to go on the parish if they could not get credit; if there had been no credit given in South Wales during the strike, the parishes would have been overwhelmed unth paupers, but on the faith of being able to recover under the present law the people obtained credit, and so kept away from the parish.” —Mr Bass: “Ts it a desirable state of things, do you think, that the shopkeepers in South Wales should impoverish themselves, in order to maintain a strike against the masters, causing a rise in the price of coal?” ‘Tam very sorry they should impoverish themselves, as it has prevented rioting; at all events that is my opinion.” What Mr Nicol, whose services to the public have been of exceeding great value and importance, stated should have had great influence on the Committee, and should not have been received with a flippant remark. Amidst all the trouble and difficulties of the great Strike, lasting three months and a week, there was no expression of any feeling of injustice through the County Courts in reference to the administration of the law. The influence and existence of Credit gave security and restrained the commission of any acts of violence. The writer held the Courts as usual, and though the business trans- acted in them became small, not a word was expressed which could be censured. Whatever may be said respecting the Strike, the con- duct of the men was peaceful and respectful and deserving of great commendation. Mr Stapleton, M.P. for Berwick : “ Would it not be very much better for society at large if the employer, by paying more frequently or by making advances, enabled their labourers to avoid getting into ’ , On County Courts. 11g debt?” Mr Patchett: ‘‘ Probably it might, but I deal with the facts as I find them.” Mr 8. “Ifa man knew his wife could not get a dinner on credit, would he not have a strong inducement not to drink away his money ?” Mr. 8. “If you had been an Irishman I should not have been surprised, but being a Scotchman yon did surprise me [4,714], for the result is that, with all this power, you never got a farthing from that creditor.” Mr S. “Is that the best case which you and all your sixty Scotch heads can put together?” [4,715.] Mr 8. “You are Mayor of Newcastle-under-Lyne?” “Yes.” —“ Therefore you are a person of very high position. You said there are sixty Scotch drapers: are you an average sample of the sixty, or are you a picked man? I ask you [Mr Hyslop], as Mayor of Newcastle-under-Lyne, do you mean to tell this Committee that Scotch drapers put fewer men in gaol, in proportion to the extent of their business, than the other traders of the town of Newcastle- under-Lyne?” Mr Hyslop: “TI do say that.” The questions put to witnesses by legal examiners were all of them surpassed by an inquiry of the Right Hon. G. Ward Hunt, M.P. for Northamptonshire and a Bencher of the Inner Temple, when acting as Chairman of the Judicature Commission. This question was put by him to Mr Clark, the Registrar of the Walsall County Court: [8,102] To Mr Clark: “I suppose they are the same class of people who are generally the subjects of orders of bastardy ?” Mr Clark replied: ‘I have no experience of criminal business.” The persons referred to as “they”? were the ordinary defendants in County Courts! The remarks made by Bentham [anie, p. 42] are illustrated by this question. Execution against Goods.—It has been shown that “execution” on account of a judgment debt against the person of a debtor in satisfaction of a debt is abolished. Executions against the goods of a judgment debtor in the Superior Courts under writs of Fiert facias were 20,340 in 1867 and 14,681 in 1872 [ante p. 89]. In the County Courts in 1872 there were 177,421 warrants of execution against the goods of judgment debtors issued and there were 3,877 sales. Mr Elkington [1.D.C. 4,103] said: “I maintain that it is much more against the interest of the defendant and to the injury of the wife and family to take the goods [2.e., to levy by execution] than to send a man ten days to prison.” 120 On County Courts, Of this fact there can be no possible doubt and the practice of making orders to pay by instalments not merely protects the person of a debtor, if he be diligent and steady in his work, but also his household goods. This can never be the case under a system of default summonses for all debts or debts above £5. To a debtor under a default judgment there will be no place of appeal to any Judge for mercy [p. 21]. He and his household goods will be at the feet of an attorney of the plaintiff creditor. Under an execution the savings invested in furniture, all the little articles which have given pleasure disappear and a chill emptiness of the house is before the family of the debtor. The little accu- mulations of ornament and all that can be sold are sold at miserably small sums of money and there is no recovery of what is thus lost. The pressure to pay by imprisonment for a short time has its regrets ; but the industry of two or three weeks will replace what has been lost by needless submission to imprisonment. If the furniture is not sold, there is a strong inducement to future exertion and toa resolution to restrict the waste of wages at public-houses—unless the debtor is a confirmed drunkard—in order to preserve it and to maintain the comfort of a family. A Judge of the County Court may limit the amount for which an execution on goods may be levied, but it is difficult to do so in practice with frequency [9 and 10 Vict., ch. 95, sec. 95]. The wearing apparel and bedding of the debtor or his family, and the tools and implements of his trade to the value of £5, are always protected from sale. [Sec. 96. Nargett v. Nias, 32 L.T.R., 313; Collingridge v. Paxton, 21 L.J., 39.] The 9th Resolution of the Select Committee on Imprisonment for Debt contains a merciless suggestion which will compel execu- tions against the goods of debtors. Mr Hugh Carmichael, of Liverpool, gave exceedingly sensible evidence before the same Committee, showing far more knowledge of the business of life than most of its members. He said, and said correctly: “‘ Imprisonment is not a hardship compared with the law of execution against goods, because you can take out execution at any time without leave of the Court and without any inquiry. That very often entails great distress on a family; whereas, on the other hand, you can never obtain a commitment until you have shown that the debtor has the means to pay.’’—“I consider the law with regard to executions presses infinitely heavier on defendants than the law of commitments, and affects a much larger number of persons.” This witness was a man of a kindlier nature than the majority of those whom he addressed, though he considered a law of imprison- ment for non-payment of debt out of means to make payments to be necessary. On County Courts. 121 Other witnesses spoke on the hardship of executions against goods :—“It would be a hard thing,” said Mr Adam Brown, of Leeds, “‘to sell up the furniture because it would probably be a long time again before they could furnish a house.” [{8.C.I. D. 4,259. ] Nor let it be supposed that important changes affecting the powers of the Superior Courts are not needed. When Messrs Burton [6,178], Ford, E. Williamson, and Young were instructing Sir W. Erle on their ideal of Law Procedure, that distinguished man said :—‘‘ My experience as a Judge at Chambers was with a class of solicitors having business very different from that which you, gentlemen, are conversant with. Defendants have come with grievances that are really terrible to hear, where a debt had been contracted and they had offered to pay. There were frequent instances of failure to pay a very small sum, and then advantage was taken of it and judgment for the full amount obtained—of course, leading to inevitable ruin. Constant applications were made to me at Chambers by a certain class of solicitors, and defendants were constantly coming and asking for some relief. Those were cases where there was a real grievance.” The constancy of such applications would cease if the Judges’ Chambers were as publicly open as Courts of Law, and if reporters were always in attendance. Public criticism should watch over the Chamber business and especially at this time. It should be known in what way applications to remove causes are dealt with which it is desired should be heard in County Courts.* In nothing is the usefulness of the officers of the Courts shown more than in the processes after judgment whether on committals or against the goods. Where the High Bailiff or any Official Bailiff is an active, honourable, and efficient man he proves, in his depart- ment, the advantages of a domestic tribunal by being able at once, in all cases, to communicate between judgment debtors and their crediters and negotiate and intercede for necessary delay or relief. This attorneys would not door would not do gratuitously. The * An interesting scene took place in the carriage of the Sheriff of Mon- mouthshire in 1873 :—‘‘an out of door” chamber? It arose from the hat of the Sheriff being asked for after the Judge had got into the carriage. The Sheriff was told he would be fined £300, then £100, and, lastly, he was forgiven. He is a most estimable person. When Mr Curre, of Itton, was Sheriff of Monmouthshire this occurred :—Judge’s Official. ‘‘Sir, you must not sit in the carriage with your hat on in the presence of her Majesty’s represen- tative.” Mr Curre. “But I am also her Majesty’s representative, and I have charge of the county: I have a very bad cold.” Judge, ‘You do right, sir, to protect your constitution.” Such good sense does not always prevail to sustain true dignity. Q 122 On County Courts. services thus rendered by Bailiffs, as officers of the Court, are of inestimable value ; yet the Commissioners would destroy their official occupation. Then again and of great importance to suitors, is the economy with whieh every execution is levied by the responsible officers of the Court and the certainty that the whole amount levied will. be payable out of Court at the earliest moment and without deduction. To change this practice would be another step to destroy the utility of County Courts. It is evident that the system withdraws a very large amount of money from diminution through professional charges and secures the payment of the whole money paid on account of or payable to plaintiffs. The opinions of certain solicitors may be regarded to be repre- sented by Mr Angell, who has one of the largest debt collecting businesses in the city of London [1,992]. His evidence represents that he prefers to take cases before the “Master” of one of the Superior Courts : though the costs are more, the costs out of pocket (fees P) are less : the conduct of Masters is “ quiet and gentlemanly ” [2,003]. “ The Master does his business better than the County Court Judge [2,001]. Attorneys, who have not much practice, make the most of a cause, and all sorts of things are done and done very improperly. A plaintiff should serve his own process [2023]; Regis- trars should see that affidavits are sufficient. [Most certainly, and it is gross indolence if they donot.] The issuing of plaints is practi- cally done by Clerks who have generally no legal knowledge. Very large sums have been lost by not being able to sue where the Cre- ditor lives [this would diminish care in giving credit]; you want nothing but a Registrar and a Clerk in an office [2,109]; the Bailiffs are perfectly useless [2,111] ; parties should serve their own summonses ; does not know that the treasurers are of any use; plaintiffs should issue their own plaints; the present system of issuing plaints is a denial of Justice [2,137]; the business of the City of London Court is done as well as can be, to a certain extent; there isa large amount of business there and it is knocked off very quickly indeed; there is not time to do it [2,139]; [then there should be a Second Judge, but this might interfere with the profits of the Lord Mayor’s Court]; the procedure of the Lord Mayor’s Court is admirable; a promise by letter to pay brings a case within its jurisdiction; the remuneration of solicitors in the County Courts very inadequate ; a small charge should be allowed to them on every step ; for whatever they do some small fee should be paid. Expenditure of County Courts would be reduced by abolishing the banking system; Bailiffs and their assistants should be abolished; and the Sheriff should levy and be an officer of the Inferior Court as he is of the Superior Courts [2,205].” On County Courts. 123 The Commissioners appear, by their questions, to have been attentive, yet they did not dwell on the consequences of most of these suggestions. If the proposed changes were made there would be no reason whatever why attorneys should be debt collectors, and through such changes they would certainly ruin many households with little or no benefit to their clients, however profitably to them- selves. There were complaints made by Mr Angell of the practice of certain Courts which the Commissioners should have required him to connect with named officers and named Courts. Without such particulars the statements were without value as evidence and it was not honourable to give them currency. On the other hand Mr Reynolds, a solicitor, and Registrar of the Hererorp County Court, uses these expressions :—‘ Small un- defended cases are already shouldered out by the Judges. So the poor absent defendant gets his law from an inferior officer. If the jurisdiction is to be increased the County Courts will cease to be a small debts and a Suitors’ Court.—Keep the original plaint book always in view, and respect the small suitors. Rich people can take care of themselves.”’—“ Let all certificated solicitors appear, no matter how retained.’—‘‘ No enactment will keep out a sharp attorney.” —‘ Discourage the County Courts as Lawyers’ Courts— Encourage them as Suitors’ Courts.” —“ He objected to the Registrar and his office being plagued by the runners and scum of a low solicitor’s office as process servers. It would not be pleasant to enter up judgment and issue execution on the affidavit of service of a known rascal.” —“ The present system of Appeals is efficient, and the small number of Appeals is to be attributed to the liking of the public for speed and certainty and to their dislike for lawyers’ bills. —Appeals are a lawyer’s initiative.’—‘ Suitors want cheapness, certainty, and despatch. Lawyers want reserved questions, appeals, and such divers devices.—Do not weaken the Judge.” —“Interlocutory orders need not be made. They mean special pleading, legal tech- nicalities, delay, and long lawyers’ bills, and the longest purse winning.” There are other cases than those mentioned in former pages [49 and 50] in which the County Courts have jurisdiction, and they are as follows: , 1. By sec. 26, C.C.A., 1856 [19 and 20 Vict., ch. 108] in any action of contract brought in a Superior Court, when the claim indorsed on the writ does not exceed £50, a Judge of the Superior Court, on the application of either party, after isswe joined, may in his discretion, and upcn such terms as he shall think fit, order the 124 On County Courts. cause to be tried in any County Court which he shall name. The result is to be certified to the Master’s Office of, such Superior Court, and judgment in accordance with the certificate may be signed in such Superior Court. The power to grant a new trial rests with the Superior Court [L.R. 1, Q.B. 427, Balmforth v. Pledge]. The order for trial in the County Court does not remove the action, but it ought to have this effect. The writ and “ particulars ” should be sufficient, the sum of £50 being within the ordinary juris- diction of the County Court. The Table at page 46, ante, shows the preference given to the course of proceeding prescribed under this Act. The trial is to be after issue joined. 2. As to costs of a cause sent down from Superior Court, the late Mr Welford, J.C.C., illustrated them thus: An action commenced in the Court of Exchequer by Marsden and another, assignees of Soloman, a bankrupt, v. Henry Solomon, to recover money as part of the bankrupt’s estate, was sent for trial to the County Court at Birmingham. The amount claimed was £48. The issue was tried on the 3rd of May, 1870, without a jury, and a verdict for the plaintiffs, with £44 damages, found. Eight witnesses were examined for the plaintiffs and one for the defendant. All the witnesses lived in or near Birmingham. Judgment having been signed in the Superior Court, the Taxing Master sent the bill of costs carried in by the plaintiffs to the Registrar of the County Court for the purpose of having such of the items as related to the work done in the County Court taxed by the Registrar. The total amount of the bill, untaxed, was £75, and afurther sum of about £4 for entering up judgment and subsequent proceedings would have to be added, making the total of the costs, untaxed, £79. That part of the bill which related to the County Court work amounted before taxation to £37 6s. 10d., and when taxed by the Registrar according to the County Court scale, to £23 11s. 10d. The latter sum represents almost exactiy the total amount of the plaintiffs’ costs, taxed as between party and party, if the suit had been originally commenced in the County Court. The difference, being £45 8s. 2d., is the extra sum incurred in costs by reason of the suit having been instituted in the Superior Court. This amount will be reduced on taxa- tion possibly by £15, and even then there will have been £30 absolutely wasted by the institution of a suit in the Superior Court instead of the County Court, and which was after all tried in the County Court. I believe this is a very fair illustration of the additional costs incurred in every suit commenced in the Superior Court and sent as an issue to be tried in a County Court. Besides this the defendant’s costs were considerably enhanced by the commencement of the suit in the Superior Court. Costs! costs! costs! Resort to the Superior Court in the first instance for the sake of costs! 3. The C.C. Act, 1867, sec. 7 [80 and 31 Vict., chap. 142] provides that, in any action of contract brought in a Superior Court, when the claim endorsed on the writ does not exceed £50, it shall be lawful for the defendant, within eight days from the day of the service of the On County Courts. 125 writ, if the claim is contested, to obtain an order for trial in the County Court; and the Judge must [“shall’’], unless there is good cause to the contrary, so order. The plaintiff must then lodge the original writ and the order in the named County Court. The cause and all proceedings therein are then heard and taken as if the action had been originally commenced in the County Court. The application to remove the action may be made without any “‘ appearance” in the Superior Court, and the cause becomes absolutely removed to the County Court. There ought, however, when the sum recovered is above £20, to be a power similar to that contained in the Local Courts of Record Act, 1872 [85 and 36 Vic., ch. 86, sec. 9], to file the judgment with the Clerk of the Judgments of one of the Superior Courts, without the hindrance of any of the conditions contained in sec. 49 of the 19th and 20th Vict., ch. 108 [C.C. Act, 1856]. 4. By the 30 and 81 Vict., ch. 142 [C.C. Act, 1867], sec. 10, when, in an action for malicious prosecution; illegal arrest; illegal dis- tress; assault; false imprisonment; libel; slander; seduction ; or other action of tort, the plaintiff has no visible means to pay the costs of a defendant, if a verdict should not be found for the plaintiff, power is given to a Judge of the Superior Courts to remit the cause from the Superior Court to a County Court. This power the Judges, under the 30 and 31 Vict., ch. 68, and a General Rule of M. T., 1867, have delegated to the Masters [Palmer v. Roberts, 29 L.T.R. 403]. Voluntary Submission to the Jurisdiction —There is also under the 19 and 20 Vict., ch. 108, sec. 23, power given to try, by consent, all actions, except for crim. con., which may be brought in the Superior Courts. In a case for malicious prosecution it was held that if there is an appeal there must be set out with particularity the evidence given at the trial, so far as is material to the question of “reasonable and probable cause.” [Thornewell and Wife v. Wigners, 40 L. J., 1871. Ex. 49.] It was the practice of some of the Judges of the County Courts to take Arbitrations until Lord Chancellor Cairns expressed his opinion that, if not contrary to the words of the Act forbidding private practice to the Judges, it was contrary to its spirit. Mr Justice Quain remarked, with some asperity [3,440], that “he (Lord Cairns) knew, as I know, in every district of England with which I am acquainted, that a great portion of the time of the Judges which ought to be devoted to the public was devoted to the practice.” The Judge to whom these words were addressed showed that they could 126 On County Courts. have no application to him. They certainly were not applicable to any Judge with the business of whose circuits the writer is acquainted. The writer himself took some arbitrations. Before he took the first, Lord Brougham in emphatic words, expressed to him his full approval. He took those which were represented to him to be of urgent importance, or in which the expenses, if they were not taken by him, might be ruinous to one or both of the parties, but he never accepted’ any fee, or reward of any sort or kind, either directly or indirectly. A Parliamentary Return in 1855 shows that other County Court Judges acted in a similar manner. But the fact is, that all the cases referred to arbitration might, by consent, have been tried by a Judge of a County Court in the ordinary manner ; but the judgment of a County Court cannot, as a matter of right and of course, be filed ina Superior Court if desired, as if it were a judgment of such Superior Court. By the Act of 1872, Her Majesty in Council can confer this power in order, if possible, to revive the now comatose and torpid civil jurisdiction of old Borough Courts which were usually dens of plunder. This Law Jos has already been explained [ante, pp. 34-37]. It was to the County Courts that honest law reformers should have given this power to transfer judgments. [8,745.] Mr Justice Quain (Chairman): I observe that the system of trying actions by agreement above £50 appears to have failed in the County Courts? Mr R. Kettle, J.C.C.: Yes.—I see that in your circuit in 1868 you had only one suchcase? Yes. [There were twenty-five on all the circuits in 1872. ]— Can you tell us to what this is to be attributed? Icannot. I am very much surprised to find that parties do not resort to the County Court for the purpose of trying a certain class of cases. I refer to mining cases,—Considering your experience as an arbitrator, can you account for that? I cannot account for it in any way. There have been mining cases heard before me as arbitrator, in which I had to give awards for large sums of money, as much as £100,000 in one year. I have often wondered that parties do not agree together to try some of those heavy mining cases before me as a County Court judge, instead of choosing me as an arbitrator. Iam surprised at this. Since Lord Cairns’ letter was sent to all Judges of County Courts, there is seldom a month passes that I do not have most urgent requests to act as arbitrator in mining cases or cases relating to engineering connected with iron and coal, or in relation to the valuation of mines. Still they do not bring the heavy cases into County Court by consent.—You cannot give any reason for what you state? No.—Is it not eculiar to your Court? Mine is an instance where a County Court Judge has had special practice in cases of a certain class in his locality.—The system appears to have failed? I think it has.—It is so generally, and_ not merely in your district? Quite so; but it is more remarkable in my district than it would be in most districts, because I am chosen voluntarily to act as arbitrator, and when they can with equal freedom choose me as judge they do not do so. I cannot even guess at the reason. I suppose the triad made of the letters £s. d. is at the bottom of it.—You think something in the shape of costs must be at the bottom of it? Yes.—[8,754.] (Mr Rothery) : That is tosay, the remunera- On County Courts. 127 tion to the professional men is not sufficient in the County Courts ? When they take acase in the County Court by agreement, the County Court scale does not apply. The County Court Judges are compelled to hear all such cases if they are entered as causes, and they can be heard with the smallest possible expense and without delay; but, if this were usual, there is not a single Judge whose office, on this account alone, could with propriety be abolished. The chief step needed is, that the judgments of County Courts in all such cases, as well as in all other cases above £20, should, inexpensively, and of course that is without asking the opinion of a Judge of the Superior Court, be filed among the judgments of a Superior Court, and become operative as judgments of the Superior Courts. Who in the House of Commons is willing to be acknowledged as an earnest, honourable, and truthful Law Reformer? The place of such a Reformer is vacant. It will now be convenient to deal, though necessarily in a some- what unconnected form, with certain particulars contained in the Report of the Judicature Commissioners. 1. They say ‘“‘ Their attention was first directed to ascertain the principles on which the reorganisation of the Superior Courts of Civil Jurisdiction should proceed.” The Report omits any statement of such principles, but it imperfectly relates the “accidents ” of some causes. 2. They are of opinion that “onz great coop Superior Courts do is making the administration of the law reasonably certain,” and that “the great principles of the law are fixed and are applied with comparative certainty in the Superior Courts.” These words do not compliment judicial persons nor commend their application of the « great principles ” of law when “fixed.” Only some comparative [to what ?] certainty is obtained in applying the fixed principles ! 3. “The cheapness and convenience of County Courts have attracted to them business of a varied and anomalous character.” These words need explanation ; but it is stated “that the system has been built up with little regard to simplicity or uniformity.” The illustrations given relate to general rules of law, such as Bank- ruptcy and Admiralty, and not to the administration of the law. 128 On County Courts. _ 4 Rules relating to Appeals are described to be connected with “inconsistencies which call for alteration and correction.” For example, it is said: “‘ The conditions on which appeals can be brought are widely different in the different jurisdictions. In Common Law cases the notice of appeal must be given within ten days from the trial; in Equity cases thirty days are allowed. In Admiralty proceedings notice is not required, but the ‘instrument of appeal’ must itself be lodged with the Registrar of the High Court of Admiralty within ten days from the date of the order: while in Bankruptcy cases, a copy of the notice of appeal must be left with the Registrar of Appeals within twenty-one days from the date of the decision or order appealed from.” If it were shown that these different times were unnecessary or caused the proceedings to be dilatory, a change would be needed; but persons who know what occasions different classes of causes and the varied assistance needed in appeals to the different Courts of Appeal must know that differences in the time of making appeals may be most essentially necessary. Make the time too short and injustice may be done or there will spring up interlocutory applica- tions for the extension of time. If the time in each class of cases is sufficient, absence of uniformity is not inconsistency and does not, on this account, “call for alteration or correction.” If on some other account alteration is needed the Commissioners should have stated their reasons in favour of alterations and what alterations and corrections they propose, otherwise their statement is unnecessary. The evil in rules of practice is the existence of unalterable fixed rules. Courts should have the power to interfere with all rules when an adherence to them may cause injustice or check the progress of a cause or when they occasion needless expense. “Under the English system,” said Bentham, “ generally speaking, fixed lengths of time are allotted for every operation; lengths of time without the smallest regard to the quantity of time necessary for the ends of justice—the different quantities demanded by different distances between place and place—the differences in respect of the degree of complications in the cases, the abodes of parties and neces- sary witnesses; in a word, not any, the smallest regard is, in any part of the system of fixation, paid to circumstances; nor, therefore, to the interests and feelings of any of the individuals concerned.” [ Works, vol. 7, p. 289, see vol. 2, pp. 170-180. ] Experience may have shown the minimum time which is usually necessary under different modes of procedure, but experience has not shown that the minimum of time should be uniformly the same. 5. “Speaking generally,” say the Commissioners, “the infor- mation and evidence we have obtained show that the existing system is too costly and elaborate. We think it right also to call attention On County Courts. 129 ™ to the expense of the very large staff of Registrars and similar officers existing throughout the country and to the waste of power thereby occasioned. There are 40 District Registrars of the Probate Court alone maintained at an annual expense of many thousands of pounds. In Liverpool there are the following Registrars :—One Registrar of the Admiralty Court, one Registrar of the Vice-Chan- cellor’s Court, one Registrar of the Court of Common Pleas of Lan- caster, one Registrar of the Probate Court, two Registrars of the County Court, and one Registrar of the Passage Court.” If Courts are to exist, a Registrar is a necessary officer ; but why is this notice of Registrars of various Courts interpolated in a state- ment respecting County Courts? Drapers have clerks, parishes have clerks, bakers have clerks, but it is not to be inferred that there is “waste of power’ in the clerkship of a mill, or in any other instances of clerkships. It may be, and probably is the fact, that all the Courts of Liverpool might be reduced to two, but a series of unconnected particulars do not authorise even this conclusion. The system, it is said, is too “costly and elaborate.” It secures the administration of the law at a moderate cost to suitors, as will be presently demonstrated ; it enables every man, without profes- sional assistance, to sue for the price of a cow, a rick of hay, or anything sold by him and unpaid for below the sum of £50. In matters of tort, and other disputes, the Court is open and every man may be heard without professional assistance. What is due toa plaintiffon a judgment debt is collected and what is received paid to him without deduction. The more numerous educated persons become the larger will be the number of persons who willbe able to transact their own business in the Courts so long as all cases are heard in the locality where the dispute arises, or where the place of hearing is most con- venient to the parties. The protective power of the law has been established in every parish of the kingdom, and there ought to be no diminution of its present local influence. The system is not too elaborate. It may be amended and its usefulness may be ex- tended. 6. “Do you see your way,” said Mr Lowndes, “to making the County Court system pay for itself?” [2,195.] : [ “The country was half a million out of pocket by itin two years.” 2,193. ] “There is an enormous expense to the public,” said the Right Hon. Mr Hunt, “I mean to the general taxpayer, because these Courts are not self-supporting, and a staff kept up to keep the accounts ‘between the parties when the parties might well be left to arrange matters between themselves when the judgment was obtained.” “ Are you aware,” said Mr Rothery, ‘‘ that the County Courts are at present a considerable tax on the country?” [5,858.] R 130 On County Courts. “Tf you diminish fees they will be a still greater ta country.” [Mr Rothery, 6,859. ] = \ ee The County Courts ought to be a considerable tax on the country. Self-supporting Courts are sustained by unjust taxation on that part of the community which directly seeks the assistance of the law, while that part of the community who are protected by the existence of the Courts without personally needing their direct intervention contribute little towards the protection they obtain. “The country, in two years, is half a million out of pocket!” How much more than a million have not many thousands of persons saved through these Courts from lawyer’s charges in the course of _ the year?” As a distributive charge upon the public the costs of the Courts have been unfelt. As a personal charge on suitors, every payment, directly or indirectly made, every sum of money advanced to get legal assistance—formerly necessary and now needless—was . oe painfully sustained and oftentimes bringing ruin on a amily. In one of the last writings of Mr J. S. Mill [Fortnightly Review, No. 75, N.S. p. 397, March, 1873,] he used these words: “M. Baer ably confutes the doctrine which has considerable hold on many minds—that persons should be taxed more or less according as they are supposed to benefit more or less by the services of the Government, or according as the services they receive cost more or less to the State.” Many of the Judicature Commissioners appear to be free from any knowledge of the chief ends and duties of a Government. To proceed, the Commissioners say: “that these Courts should, subject to a power of transfer to a Superior Court, have jurisdiction unlimited by the amount claimed whatever be the nature ‘of the case.” This proposal is to be commended. It appears by the “Judictal Statistics,” 1871, p. vi., and 1872, p. vii. [ante, p. 45] that the number of verdicts obtained in the Courts of Westminster and on Circuit were: 1870. 1871. 1872. £50 and under. . D4ede . 197 ; 244, £20 to £50. 3 . 370 5 864 é 358 614 561 602 £50 to £100 . ‘ . 256 b 245 Fi 263 £100 to £5000 : . o38 2) AFR : 499 —_—— 794 717 762 On County Courts. 131 It will thus be seen how few civil causes there would be for trial before eighteen Judges of the Superior Courts, if the causes for £50 and below this sum were commenced in the County Courts and there heard subject to appeal. The above numbers state the cases in which verdicts were given. A diary of the official occupation during a year of the Judges of the Superior Courts would be instruc- tive. But the above number of cases becomes remarkable when con- trasted with the number of cases actually sent for trial to the County Courts from the Superior Courts. Their number has been as follows : 1859 ‘ ‘ 61 1866 . . 244, 1860 ; : 58 1867 2 . 293 1861 3 ; 82 1868 . ‘ 583 1862 ‘ . 119 1869 : ‘ 595 1863 : : 100 1870 : ‘ 597 1864 . : 119 1871 ‘ ; 610 1865 ; : 146 1872 . 3 504 Mr Solicitor-General Harcourt states in his pamphlet, entitled “A Plan for the Amendment of the Law” [p. 40], “that there is room and necessity for an extensive reform and economy in the whole organisation of the County Courts. First, we have the APPALLING figures of £414,706, in ‘the Hstimates,’ as the costs of the County Courts, besides £92,700 for the Judges, or more than half a million of money in all.” “Its cost is immense, and, I believe, wnnecessary.”’ Such is the statement of the Solicitor-General, who has entirely forgotten to discuss the most material matter of inquiry in connec- tion with law reform—namely, what is the estimated amount of costs in ordinary legal proceedings in each of the Superior Courts, and also in Committees of the House of Commons, chargeable upon suitors and promoters of Bills, and to what extent can they be reduced P There is abundant occupation for reformers in Committees of the House of Commons. Inflexible rules have sanctioned enormous plunder. On April 3, 1873, there was presented to the “ Select Committee on Civil Services Expenditure ” the items of expenditure on account of County Courts ending the 31st of March, 1872, as follows: 132 On County Courts. Taste I. £, 1. Salaries of Judges charged on Consolidated Fund* - : . | 92,198 2. Pensions of late Judges . r ‘ 4, 171 3. Compensations to, for abolished offices under Acts Bo ll, 852 Crass III.—Vore 6. £. 4, Salaries . F ‘ : 355,943 5. Fixed allowance for Travelling - - s » 20,413 6. Printing and Stationery . ‘ » 14,925 7. Registrars’ Remuneration in Bankruptey ‘ « 24,874 8. Incidental Expenses. 5 : « 16,221 Ciass I.—Vore 16. ———| 480,876 9. New Works and Additions . : 2 - 15,228 10. Alterations, Maintenance, and Repairs 7 3 5 5,935 ll. Rents . : . 3 % » -« 14,246 12. Payments to Caretakers | : p : : : 5,141 13, Furniture. ‘ ‘ a ‘ F a . 1,154 14, Fuel and Light 3 : ‘ ; as 5 2,858 15. Rates, Taxes, and Insurance ‘ 3 5 3 Z 153 ——| 44,720 Extra REcEIPTS : i Class I1I.—Voteé6 . ‘ ‘ . ‘ . - 857,612 | 583,817 Class I.—Vote 16. : 3 a‘ s Zi 746 Bankruptcy Stampst (say) . é ‘ $ - 80,000 ——— | 388,358 Difference . . . - : » |£195,459 The following is the Estimate laid before Parliament last year (1878) : Tape II. 1872-73. Tue YEsR ENDING 31st Marcu, 1873. Vee €. A. Salaries . 3 : : : : - 361,070 B. Fixed Allowances for Travelling i 2 i ‘ F ‘i 20,594 C. Printing and Stationery . : ‘ 2 * , : 5 16,000 D. Registrarsin Bankruptcy . ‘ . 5 4 ‘ : 21,000 E. Incidental Expenses . ‘ : . z 7 3 : 14,290 432,954 Receipts from Fees paid by Suitors é 3 : 3 . | 856,000 86,954 Bankruptcy Stamps ‘ 5 . ‘ i ‘ ‘ ‘i 21,000 £65,954 * The sum of £92,700 per annum for Salaries of the Judges is charged on the Consolidated Fund, pursuant to 19 and 20 Vict., v. 108 ; 20 and 21 Vict., c, 36 ; and 28 and 29 Vict. c, 99. t The whole of the cost of “Registrars in Bankruptcy” is Tepetd to the Exchequer by means of Stamp Duty. On County Courts. 133 DETAILS OF THE ABOVE. 1872-3, A.—SALARIES : £. 1. Superintendent of County Court Department ‘ ‘ : 900 2. Additional Allowance for duties under 29 Vict., u 14 . - 300 3. Assistant . 3 : . 590 4. Clerks employed under 29 Vict., elt. 1,950 5. Copying for Standing Committee of Judges of County Courts 100 6. Registrar of ele ee Judgments . : 5 700 7. Chief Clerk . . et ( F : : 350 8. Second Clerk. ‘ . : 7 150 9. Copying in Registrars of J udgments’ Office | : : . 110 10. Housekeeper at Registry . . oe my 20 5,170 11. Treasurers of County Courts % 7 i é : 8,500 Ditto ditto 3 : j 4,200 12. Treasurers’ Clerks . 7 2,150 Ditto ditto. 1,050 13. Registrars of the 500 Courts regulated by 19 and 20 Vict. c. 108, ss. 82 and 84; and 29 Vict.,c. 14,8, 14* . 196,000 14, Hee h Bailiff, regulated by 19 and 20 Vict., e 108, ss. 83 and 84 * | 139,000 15. ers of the various County Courtst . ss 5,000 Total for Salaries 3 i . : « {£361,070 B.—¥1xED ALLOWANCES FOR TRAVELLING: Travelling Expenses of Judges. . 13,960 Ditto of Treasurers and their Clerks g 8,328 Ditto of Clerks employed under 29 Vict., c. 14 656 Ditto of Registrars and High Bailiffs and their Assistants of Courts in which the plaints exceed £6,000 . 2,650 Total for Fixed Allowances for Travelling . | £20,594 C.—PRINTING AND STATIONERY . . - : é % i 16,000 D.—REGISTRARS IN BANKRUPTCY : Remuneration payable under Act 32 and 33 Vict., c. 71, ss. 68 and 79, for performance of Bankruptcy business f . 21,000 [The whole costs of the ou in Bankruptcy is repaid by means of the Stamp Duty. The payments are made in respect of the performance of special work. ] * In Equity and Admiralty the Registrars and High Bailiffs receive also Fees, which they retain to their own use, under the Acts 24 and 25 Vict., c. 134, ss. 10 and 11; 28 and 29 Vict., c. 99, s. 12; and 31 and 82 Vict., ¢. n ss. 17 ‘and 36. + The Salaries of Ushers, who act as Caretakers, are provided for in the Estimate for County Court Buildings, Class I. } The remuneration payable for these services is a fixed proportion of the amount levied as Sip Duty, and which duty is paid into the Exchequer. 134 On County Courts. 1872-73. E.—IncmentTat EXxpEnsss : —— £. Postages i moras . arr, i. oa 8,500 Conveyance of Persons committed to Prison . ; . : 4,400 [Mr Bass, M.P., asked if this expense was not charged on the Consolidated Fund!! Plaintiffs pay 1s. 6d. in the £. on the amount for which warrants are issued, in order to meet this expense of Conveyance. ] Jury Lists. . 7 2 j . ‘ Z ‘ . 220 Other Expenses . . . . . . . .) 1,270 Total for Incidental Expenses . r . | £14,290 .The true question to be solved is,—what are the annual working charges P With this view, Table I. ought to be corrected thus : a 1, Judges’ Salaries charged on the Consolidated Fund . Sl. 92,198 Cuass III. 4. Salaries [items 11, 12, 13, 14, 15, supra] ‘ 7 ‘ : 355, 900 5. Fixed allowance for Travelling . ° ‘ 5 ‘ ‘ 20,594 6. Printing and Stationery 5 : ci . : 3 3 16,000 7. Registrars in Bankruptcy . . : ‘ ‘ 5 5 21,000 8. Incidental Expenses . . a ‘ 5 3 ‘ 14,290 Crass I. 11. Rents . 3 ‘ : * 2 Fi . e 4 . 14,246 12. Caretakers . . s 3 F é . a . 5,141 13. Furniture. 3 : ‘ : : : ‘ * : 1,154 14. Fueland Light . 3 ‘ 5 4 “ s . 2 2, 858 15. Rates and Taxes . . . eo : : ; 2 153 543,534 Registrars in Bankruptcy,—repaid by Stamps : ‘ 21,000 522, 534 Fees paid by Suitors, and exclusive of Rents received, £746. | 357,612 164,922 Payment from Consolidated Fund for Judges. ., 92,198 £72,794 If the High Bailiffs’ charges set out in Table II., amounting to £139,000, were altogether removed from the account, the work paid for would have to be done, and ata very largely increased cost to suitors, for every plaintiff would have to employ his own Bailiff, and Bailiffs so employed would require costly superintendence. On County Courts. 135 When the items of the above Tables are examined, they will not appear to be “appalling,” nor will the expenses of the Courts appear “ ¢mmense ” or “ unnecessary.” The Courts are connected with the direct and immediate administration of justice in every parish in England and Wales. There is not a person who is wronged in matters within the jurisdiction of the Courts who cannot personally address a Judge of the Courts at some Court adjoining his own residence. No expense in the way of assistance is forced upon him, and the occasion is rare when he may be withdrawn beyond a day from his own house or from the protection of his neighbours in seeking legal aid. The economy to the public of the system is exceedingly great ; its protection infinite in its effects. Items 2 and 3 of Table I., relating to pensions and compen- sations, are not “ working charges.” They may be omitted. Items J. to 10 of Table II. relate to Imperial superintendence ati a charge of £5,070 a year. It is not of importance to suitors, as such, if there is a “ London Registration Office,” though undoubtedly it is a very useful office to wholesale traders in London and else- where. This charge may be omitted. The items 9 and 10 of Table I., amounting to £21,158, relating to new buildings, should be excluded from the annual working charges; and for this evident reason, namely, that the account is not credited with the value of the new buildings which have been erected from year to year for many years past, though the sum of £746 in Table I. may represent some rents received. There are now 56 Circuits and 449 Court Towns [Judicial S., 1873, p. xi.] and 449 places at which Courts are held. Circuits 10, 34, and 56 have been absorbed in adjoining Circuits and three Judgeships have been suppressed. Under the Act of 31 and 82 Vict., ch. 71 (1868), 34 County Courts and the City of London Court have Admiralty jurisdiction. The number of County Courts having jurisdiction in Bankruptcy is 130. The London Circuits 39, 40, 41, 42, 44, and 46 have no such jurisdiction. The two items of large amount in Table II. are—Registrars, £196,000, and High Bailiffs, £139,000, or a sum of £335,000, out of £543,534. The salaries of Judges shall be dealt with here- after. As respects Registrars, there must be a Registrar, formerly called ‘‘ Clerk,” of each County Court. His duties are—to super- intend the issue of plaints [ante, p. 52]; to superintend the receipt and payment of money; to attend the Judge and register orders ; and himself to hear and make orders in undisputed cases. He helps plaintiffs to issue their summonses and to order them to be served. The fee is one shilling in the pound to £20 ;—what would a plaintiff 136 On County Courts. have to pay an attorney in such cases? In Courts having Bank- ruptey or Admiralty jurisdiction tkere is onerous Chamber business to discharge, which, so far as the writer’s knowledge extends, is well performed. It is impossible to comprehend in what manner District Courts can be managed without Registrars unless many District Courts are consolidated, and this can only be done by a most destructive change in the County Court system,—a change for which there can be no valid or sufficient justification. The fees paid by the suitors entirely pay the expenses of the Registrars and of their Clerks. The Judicature Commissioners in their Second Report [pp. 17-18], in connection with their suggestion of “a considerable concentration of County Courts, in order to make a great reduction in the number of Judges and of Registrars,”’ propose that a sort of cheap “ Jack or THE Law,” as an ‘“Itinerant Registrar,” shall “have primary jurisdiction to dispose of small debt business,” who shall “ at short intervals visit the towns of each district” [p. 18]. As the defend- ants are assumed by the Right Hon. Mr Hunt [Q. 3,102] to be of the class of “‘ fathers of bastards,” (ante, p. 129], the contempt for them may be further extended by the establishment of a cheap “ Jack-of-the-Law van,” in which the Registrar may sleep and travel. Can, however, language be too strong to condemn the Report of those to whom the interests of millions of persons were entrusted in this inquiry,—for 900,000 plaints in a year represent proceedings affect- ing directly more than two millions of persons ? The Judicature Commissioners [R., p. 18], assure her Majesty “ that competent men, barristers and attorneys, may be found with- out difficulty for the purpose of discharging these duties.” There must have been darkness of some kind affecting their own minds to have caused this expression of confidence in the working of the scheme. Jt may be hoped, if the scheme is adopted, it may be worked with decorum and without offended self-respect, even if there is no van; but the scheme exhibits a wonderful disregard, under a sham of economy, of those moral influences which great and good men have sought to cultivate through the administration of the law and in those legal schools which teach the importance of duties arising from rights of property. The High Bailiff’ charges for themselves and Bailiffs is £139,000, and this charge is also covered by the amount of fees paid by suitors. For this payment to Bailiffs there were, in 1872, 900,775 sum- monses served; 33,823 warrants of commitment issued to them, and 6,899 debtors conveyed to gaol; 177,421 warrants of execution against goods issued to them, and 3,877 sales made under their superintendence. Their duties in Admiralty and Bankruptcy cases On County Courts. 137 may for the present be disregarded. This sum of £139,000 is a large part of the sum of money which appalled Mr Solicitor-General Harcourt. The reader will remember that it has been shown [ante, p. 51] that in 1866 there were 133,160 writs issued from the Superior Courts. If the average endorsed costs on each were £3 [ ante, p. 58], the total endorsed costs must have been £399,480; and if the average was £3 10s., the total must have been £466,060. This would be truly an appalling sum on 133,160 writs compared with the above-mentioned sum of £139,000 in connection with the service of 900,775 plaints and other work performed by County Court Bailiffs. But in the same year, 1866, there were 38,410 “ appearances.” According to Mr H. Coppock [ante, p. 59], the attorney requires at least £5 on putting in “‘ an appearance,” and, therefore, 388,410 “ appearances”? cost £192,050: and this sum added to £399,580 made £591,530, or what may be called a terrific half-million, preliminary to the unfortunate litigants being taxed for declarations and pleas, &c. In the County Courts no “appearances” are entered., There is no equivalent expense to such a proceeding. The County Court Act of 1867 shook Westminster Hall. In 1872 the writs for the Superior Courts were reduced in number to 63,926. and from the alteration in law relating to costs in cases under £10 we may fairly assume these writs to have been for sums above £20; at any rate, the issue of any writ for a sum under £20 must have been to obtain improperly the highest amount of costs. Taking then £3 10s. as the average endorsed costs on writs in 1872 for “services” on 63,926 writs, we have £223,741. There were 21,467 “appearances” in 1872, and at £5 each we have £107,335. The total of these two sums is £331,076. If these calculations are supposed to be excessive they may be most generously reduced. All that is wanted is to contrast the charge of £139,000 in the Bailiffs’ account, with the expense of services and “appearances” in connection with 63,926 writs issued from the Superior Courts in 1872. The object is to remove the cause of what has “appalled” the Solicitor-General, and with this view we will knock off £100,000, and request him, notwithstanding, to reflect on the contrast free from any sensations of terror. Contrast, therefore, an approximate expenditure of £190,000 on the service of 63,926 writs alone, with the expenditure, under the head of High Bailiffs, of £139,000 on the service of 900,775 sum- monses and the performance of their other duties, and say at which side of the contrast should Sir W. Harcourt and his legal friends be “ appalled?” ae Should it not, therefore, be apparent to the Solicitor-General 8 * 138 On County Courts. that the item for High Bailiffs of £139,000 is a very economical charge, and that, if officials did not do the work they do, the same work must be performed for suitors, and that it could only be per- formed at an enormous increase on the present charge ? As the Solicitor-General desires to remove a terrible “ appal- ment” which afflicts him, here is a reform which he may advocate that will be most satisfactory to suitors in the Superior Courts, namely, that writs issued from the Superior Courts shall be directly sent to a County Court, and the services shall be effected through the agency of County Court Registrars and County Court Bailiffs. The saving to suitors may thus be not less than £100,000 a-year. When the Solicitor-General effects this object, he will prove his sincerity as a law reformer working only to protect suitors. If the whole County Courts item of £139,000 relating to Bailiffs were struck out of the “ Estimates,” not one single farthing would be saved to suitors. The Judicature Commissioners were misled. Their report has been framed to promote the interests of lawyers, and it is opposed to the interests of every tradesman i the kingdom and to all classes of persons who have been protected in the County Courts. The Agency offices in London feel the great loss they have sustained through County Courts, and they know that County Courts are a power which, if not checked or suppressed, will infiu- ence or compel most extensive changes in the procedure of all the Superior Courts of Common Law, and at a very early day that of the Court of Chancery. Lawyers have the means directly to address and to influence those who occupy the chief seats of authority, yet in the end Parliament will prove itself to be faithful in its greatest mission. Let this however be repeated again and again and be well under- stood, namely, that if Mr Solicitor-General Harcourt and his law friends succeeded in removing from the public accounts the sum of about £300,000 now paid for Registrars and Bailiffs, so far from one single farthing being saved to suitors who pay this amount in fees, they would be most grievously taxed to a far larger amount by professional or legal agents. There would be no public saving and there would be increased professional plunder, for the work in respect of which the payment is made must be done and must be paid for [ante, pp. 60-66]. The Government has not, however, been indifferent to the control of the working expenses of the Courts. By the 29 and 30 Vict., ch. 14 [1866], sec. 11, the office of High Bailiff was directed to be in fature conjoined with that of Registrar. The number of High Bailiffs is every year diminishing, and the financial result is esti- mated at £60,000 [S. C. Civil Service, 1,778]. Already 60 Registrars hold both offices. In some districts there must be a High Bailiff On County Courts. 139 or Serjeant Bailiff, and his attendance in Court on the Judge is unavoidably necessary. So also, as Treasurers, or Auditors, die, the office will not be filled up, and £12,700 a year is expected to be saved. [1,784.] The work of these officers will still have to be performed, but at a diminished charge: but if the fees remain as at present, there will be no relief to suitors. A large number of questions [1,831-1,942, 2,001] were asked by the Select Committee of the House of Commons on the Civil Service Estimates respecting the Manchester Court: the limited amount of time'allotted by the Judge to his work, and the dimin- ished amount of business. Nota single remark was made, though the Judge of the Salford Court of Record was present, alluding to the effect of the Salford Hundred Court of Record Act [13th of July, 1868] on the business of the County Courts of Manchester and Salford, which has been shown in a previous page [p. 22]. The Judges of the County Courts Nos. 5 and 8 would have enough to do if the Local Act of 1868 were repealed, as it ought to be, and if the law relating to Equity jurisdiction were amended. The Report of the “Select Committee on Civil Service Expen- diture”’ states that : 1. “In the County Courts the Judges’ salaries are fixed by statute. By the Act of 1865, £300 a year was added to each of these salaries, creating a total charge of £18,000 a year in con- sideration of the Equity and Bankruptcy jurisdiction conferred on the Judges. The fees received in respect of this jurisdiction appear to be a little over £1,000 a year, and about one and a half cases have been tried in each Court.” 2. “The salaries of the Registrars and High Bailiffs are also regulated by a scale fixed by statute.” 3. “The Judicature Commissioners have recommended that the number of Circuits should be largely reduced ;” and the Committee add: “It is obviously desirable that, in view of this recommenda- tion, fresh appointments to vacancies should only be made in cases of absolute necessity ; and it is the opinion of your Committee that a scheme for re-distributing the Circuits, in anticipation of vacancies, should be discussed by the Lord Chancellor and the Treasury. At present the arrangement of the Circuits is under the sole control of the Lord Chancellor.” The Right Hon. Mr Childers asked: “If the Bill of 1865 was proposed by the Treasury, or was it forced upon the Treasury by Parliament ?” Mr Nicol : “The Bill was brought in by Lord West- bury ” [2,074]. Mr Childers: “At any rate it was a very bad bargain I suppose for the public. If the Treasury had any idea ” 140 On County Courts. that the additional payment of £18,000 a year would be represented by an average of a case and a half in each Court I suppose such an arrangement would not have been proposed ?” These bitter and unjust remarks, as well as the terms of the Report, misrepresent the circumstances under which the Act of 1865 ot the amount of the salaries of the Judges. The facts were these : 1, When the 9 and 10 Viet., ch. 95, sec. 17 [August 28th, 1846] came into operation in 1847, the Judges, with seven exceptions, were authorised to continue their practice at the bar elsewhere than in their own districts, and they were paid on account of their official services out of the fees of the Courts. 2. The fees payable to the Judges being much larger than was expected, it was, by a Treasury minute of July, 1848, directed that they should receive £1,000 a year; but the Treasury having no power to interfere with the right of the Judges to practise at the bar, they continued to practise. 3. On the 30th of June, 1852 [15 and 16 Vict., c. 54], the Act passed which, by section 16, forbad the Judges to practise at the bar on the termination of three months after the Act passed. By section 14 of this Act the highest salary of a Judge was to be £1,500 a year, and in no case less than £1,200. 4, Contrary to all former precedents in such cases, the salaries of all the Judges remained at the minimum; but on October 6th, 1854, a Treasury Minute, founded on most unjust reasons of pre- ference, ordered that fifteen of the Judges should receive £1,500 a year, and a promise affecting other Judges was made [ Minutes, January 30th, 1855, and February 1st, 1855,] respecting the future. This expressed and officially printed promise, by the Act 19 and 20 Vict., ch. 108, sec. 81 [July, 1856], the Lords of the Treasury de- prived themselves of the power to fulfil. Lord Palmerston acted honourably and made these remarks on the 11th of October, 1854: ‘“‘The tendency of recent legislation,” said Lord Palmerston, “ has been to make progressively more and more use of these Courts, and the current of public habit seems to have produced a steady increase in the business of the County Courts, as is shown by the tables of the number of plaints preferred and causes tried in 1852 and 1853. But there is in regard to these matters a further consideration which does not turn on the fluctuations of business in these Courts, and that is, the Qualifications for filling these offices. No man ought to be a Judge of a County Court who does not possess a con- siderable amount of general information aud legal knowledge and who does not belong to a sufficiently respectable class of society ; and persons so educated and qualified and so placed in point of % On County Courts. 141 social position must maintain certain appearances which cannot be sustained without a certain degree of expense. And the general interests of society require that, men charged with the administration of justice should be able to maintain a due respectability of outward condition.” Taking these circumstances into consideration Lord Palmerston is much inclined to think “ that the rule proposed by the Treasury is far too narrow and that the maimum salary ought to be more extensively granted, if indeed it should not be extended to all these Judges.” On June 18th, 1855, Lord Brougham brought the subject before .the House of Lords. “‘ Only think,” said he, “of persons filling judi- cial offices being told: ‘You are to have a salary of £1,200 a year at the least, but there is a further sum of £300 a year which it is left to the discretion of the Treasury to say, not only whether you shall have the whole but any part of it.’’’ Lord Campbell said, “ that if the Treasury had the power to raise or lower the salaries of the County Court Judges as they thought proper such a practice was monstrous and could not be endured for a single moment.” The Lord Chancellor himself said: ‘It would be very improper that a man whose qualifications, whose knowledge, industry, and unsullied character bear comparison with those of any other in the same position, who has abandoned his profession, given up everything on receiving his appointment, and who devotes the whole of his time to the discharge of his duties, shall receive a smaller salary because in his district there happens to be less litigation than in another. Certainly that is a very inadequate mode of estimating the services of a Judge.” The Act of June, 1852, was not acted on by the Treasury until October, 1854, and by this delay an injustice was committed, for the same title to an increase of salary existed in 1852 as in the year 1854. 5. By the 19 and 20 Vict., ch. 108 [29th July, 1856], sec. 81, the salaries of the non-preferred Judges were fixed at £1,200 a year, and the mazimum of £1,500 a year as respected the future was abolished. This Act, however, most properly charged the salaries of the Judges on the Consolidated Fund, instead of their being " paid out of fees—an arrangement which had been most objectionable and most offensive to the Judges. There were 22 Judges named in the Act of 1856 as being entitled to the increased salary, but death and resignation has at this time [1874] reduced their number to seven. 6. Complaints had been made of the effect of the Act of 1856, in consequence of the great increase of the business of the Courts, and when the Act giving Equity jurisdiction was passed [28 and 29 Vict., ch. 99, 5th of July, 1865], the salaries of the Judges were for 142 On County Courts. the future fixed to be £1,500 a year. This arrangement cor- rected the injustice done in 1856. The County Court Judges did not obtain the settlement of the question on account of any bargain made respecting their having jurisdiction in Equity. They had not been honestly dealt with, and the Act of 1852 ought not to have been repealed. As regarded the Judges living in 1852, the Actof the 15 and 16 Vict., ch. 54, was truly a bargain made in part as a compensation for the loss of private practice. But there were other reasons why the Act of 1865, which fixed the salaries at their present amount, shall not be condemned, and they conclusively show that the position of the Judges in connection with the payment made to them under the Act of 1865 is one of honour. 1. In 1847 the plaints entered in the County Courts were 429,215 in number; in 1872 they were 900,775. 2. In 1847 the sum of £1,358,035 was sued for, and in 1872 the sum of £2,690,792. 3. In 1847 the jurisdiction of the Courts was limited to cases under £20, and in 1850 [18 and 14 Vict., ch. 61, sec. 1,] it was extended to £50. 4, Insolvency jurisdiction was added to the business of the Courts in September, 1847, and in 1861 there was substituted Bankruptcy jurisdiction : 5. In 1865 Equity jurisdiction was given to the Courts. 6. In Bankruptcy, under the Act of 1869, the judicial statistics for 1872 show [p. 23] the liabilities and assets in bankruptcies, liquidations, and compositions in 1872; thus: Liabilities. Assets. £ £& London : : ‘ 5,953,467 . . 1,391,647 County Courts : 5 8,333,951 . . 2,922,950 and though not numerous, most important questions in Bankruptcy are argued and decided in the County Courts. It is right that the truth should be spoken, though it may often- times be painful; but was it right for Mr West, M.P., to ask this question : [1,905] “I suppose the Registrars, generally speaking, would be considered as better qualified to do Bankruptcy business than the County Court Judges?” Mr Nicol: “Certainly not on any point of law or on any question that might arise under section 2 of the Bankruptcy Act. It is in unopposed cases that the Registrar acts.” The Registrars have done their work well; but Mr West might have had some courteous professional reserve, for the County Courts have had Bankruptcy jurisdiction since 1861. The writer has had only On County Courts, 143 three appeals against his decisions in Bankruptcy, one relating to a sum of £7,000, a second relating to aclaim of £754, and a third relating to some £850, and they have been all affirmed; and he believes that many other Judges, and perhaps all, may say more than this in reply to Mr West. 14. In 1869, Admiralty jurisdiction was given to twenty-three County Courts, without increase of salary to the Judges, and 354 Admiralty cases were in 1872 instituted in these Courts. 15. In 1871 there were 610 cases, and in 1872 there were 545 cases sent for trial in the County Courts from the Superior Courts, and the demands in very many of the cases ranged from £100 to £1,000 [Parl. Paper, p. 39, No. 123, 21st March, 1873]. Looking, therefore, at the increased work given to the Judges since the year 1847, and the discussions previous to the year 1865 respecting the salaries of the Judges, the Judges are not obnoxious to the remark made by the Right Hon. Mr Childers. The Judges have not merely been required to do excessive work in Court-rooms, but to leave their homes and to travel at all seasons of the year, to incur considerable expenses in Court towns consequent on their position beyond those of maintenance ; and on days when they might have claimed rest at home they have been compelled to occupy seats of labour. If a Judge is on circuit three or four days in three weeks of a month, he has but a few days in the month tobe at home. He needs rest and he has work to do connected with his duties. The privations of circuit life, as known to the writer, are severe. In the Appendix to this publication he has given some description of the work done ina letter he had to address to the Treasury in 1872. A Judge is also compelled to be from home on many days which are not counted in Parliamentary returns, for he frequently cannot return home on the day on which a Court has been held. The remuneration of the Judges ought to be such as to enable them to be accompanied by an attendant on their circuits, or by a clerk. At present there is much writing done by them in which they need assistance, and ought to receive it, and there is personal attendance, the necessity of which ought not to be overlooked. In the third paragraph of the Report of the Committee on Civil: Service Expenditure, above cited, it is stated that the “ Judicature Commission have recommended that the number of Circuits should be largely reduced.” Mr Solicitor-General Harcourt has recom- mended the extinction of twenty judgeships. This proposal reaches the entire system of the County Courts. It is not one for the Executive or for interested lawyers to enforce as mere members of Parliament, but one of great public moment, and only to be dealt with by the decision of both houses of Parlia- 144 On County Courts. ment. “Shall or shall not the County Court system continue to exist?” is the issue. A “considerable concentration of Courts” will destroy the system, and check many most important law reforms, especially those connected with proceedings in Equiity— the greatest of all law reforms to be hereafter accomplished. A remarkable event, however, took place respecting the evidence given to the Civil Service Committee relating to the County Courts. On the 24th of April Mr Nicol was examined; on the 28th Mr N. Law, C.B., was examined; and on the 8th of May Mr Lingen was examined. The next meeting of the Committee was on the 12th of June. On the 26th of May Mr Childers informed the Lord Chan- cellor that a copy of the evidence taken would be sent to him, and that he would be happy to arrange with him as to any statement he might write to the Committee. His Lordship was actually put upon his defence for not having extinguished certain County Court Cir- cuits. His Lordship, as might well be anticipated, notwithstanding the character of certain questions put to the Treasury officials, gave a courteous but most triumphant answer. Before entering into particulars, he made these remarks: “The Lord Chancellor desires to advert to only one other sub- ject, viz., that of the appointments to vacant Judgeships in the County Courts, to which the attention of the Committee has been in part directed. He must premise that the present establishment of the County Courts is regulated by statute; that it is established for the performance of duties of the greatest public importance, and in which the people in every part of England are directly and con- stantly interested ; that no intermission or interruption in the proper discharge of those duties can anywhere take place without great and pressing inconvenience, which would certainly and justly lead to dissatisfaction and remonstrance; that the Judges of those Courts hold their offices during good behaviour, and are entitled to expect that they should be treated with the respect and consideration due to their judicial character ; that the authority of the Lord Chancellor over those Courts and Judges is not general or arbitrary, but is strictly regulated and limited by law; and that, if through any excess of that authority, or through any unwise or inconsiderate use of it, the Lord Chancellor should obstruct or interfere with the proper and beneficial operation of the County Court system (espe- . cially in any of the great centres of population), he would be justly liable to public censure.” This was a dignified rebuke to those who in the House of Com- mons represent the democracy of lawyers. The writer concurs in the opinion of Mr Nicol [1,844] that there should be a Minister of Justice. There is no apparent reason why the duties of a Minister of Justice should not be assigned to the On County Courts. 145 office of Chancellor of the Duchy of Lancaster. There would then be an official superintendence of all legal functionaries and con- stant power directed to the improvement and the reform of the law. As respects County Courts, there ought to be a stringent superintending power to regulate the holding of the Courts, and to prevent the unnecessary crowding of suitors on too limited number of days in the month. The proceedings, however, of the Judicature Commissioners, of the Select Committee on Civil Service Estimates, and the Committee on Imprisonment for Debt show the marvellous ignorance which prevails among the highest officials respecting even the mere administration of the law. The effect of the C. C. Act of 1852 was to exclude all the County Court Judges from the bar. It was a most proper arrangement, but as “barrister” means a person who may practise at the bar they were in fact practically disbarred. They became Judges. But in the law from the Judge of the highest rank down to the junior barrister there is an acknowledged precedence partly connected with office and partly governed by seniority. As the bar rank of Judges was at an end, an application was made to the Home Office, which was subsequently referred to a Lord Chancellor, that the Crown should determine the precedence of the County Court Judges. No official assent or dissent to the application was made. It was officially dropped. The chief Inns of Court ignore the Judges and the Benchers do not recognise their pnblic services. Bentham had no admiration of idle distinctions, but he knew the value of authority : “ Rank,” said he, ‘‘is the exterior sign of power. Respect is the natural appendage of rank. Respect is necessary to power. A Judge must have power over all those over whom he is Judge: he ought, therefore, to have rank accordingly.” [Bentham, vol. 4, . 378. } Pe In the estimation. of a man’s wants, it is not merely to what is absolutely necessary that our calculations ought to be confined. Fabricius and Cincinnatus are not the proper standards to be selected. The actual state of society ought to be considered: the average measure of probity must be our rule. Public opinion assigns to every public functionary a certain relative rank; and, whether reasonably or not, expects from him an expenditure nearly equal to that of persons in a similar rank. If he be compelled to act in defiance of public opinion, he degrades and exposes himself to contempt—a punishment so much the more aftlictive in proportion as his rank is elevated.” [Bentham, vol. 2, p. 245. ] The opportunity has long existed to put an end to the miserable personal objections of the leaders of the Bar to that recognition of position which the County Court Judges are entitled to claim. T 146 On County Courts. 7. “ We think,” say the Commissioners, “ that what is commonly called the exclusive jurisdiction in Common Law matters should be raised from £20 in contract and £10 in tort to the uniform limit of £50. The information we have received as to the cost of contested actions in the Superior Courts in claims to this extent shows that the expense is very large in reference to the amount recovered.” It would be difficult to estimate the great amount of money saved to suitors through the exclusive jurisdiction of the County Courts in cases under £20, but the reader might gain some slight idea of the saving by reading the scale of costs signed by thirteen of the Judges of the Superior Courts in Trinity Term, 1844, in cases where the sum recovered did not exceed £20. The reprint in small type in The Jurist, p. 225, 1844, of items allowable, fills five columns, each column being eight and a half inches long, and about 260 items being named. At page 469 of the evidence, the average taxed costs of plaintiffs are said to amount to more than 60 per cent. of the verdicts on an analysis of the charges in 141 contested cases in the Queen’s Bench. In cases above £50 and not exceeding £100, the costs averaged 88 per cent. “At the Gloucester Assizes, June 17, 1868,” says Mr J. C. Townsend, Reg. C.C., Swindon, “I had occasion to conduct, as attorney for the plaintiffs, an action for goods sold and delivered to the amount of £35 11s. 9d., to which, as was subsequently shown, there was no real defence, but I was compelled to keep the witnesses, who came from a distance, at the assize town for a whole week, and the costs amounted to £102. The defendant, the day after judg- ment was given against him, made an assignment for the benefit of his creditors. The costs in this action, if tried in a County Conrt, could not have exceeded £20.” Thus the plaintiff lost £1387! With less costs the debt might have been paid. 8. “We recommend that the existing restriction of the jurisdic- tion of the County Courts to certain kinds of tort should be abolished, and that the jurisdiction of these Courts be extended to all actions of tort. These actions really are not more difficult than actions on contract. But whether difficult or not, they will not, as a rule, bear the expense of trial before the superior tribunals. Actions of this description are frequently brought for purposes of extortion and costs.” 9. “We think that the exclusive jurisdiction in Admiralty cases should be fixed at £50, as we are unable to see any reason why that amount should be a limit in one class of cases and not in another of a similar kind.” Did the Commissioners discredit Mr Stapylion [page 3] who said, “that if the limit in Equity, Admiralty, and Probate cases were fixed at £50—that is, reduced to this amount—and the present On County Courts. 147 scales of costs remained unaltered, there would not be acase tried in the County Courts, for the expense would far exceed the value of the matter in dispute”? It is evident that the Commissioners had not determined on any principles for their guidance and did not know whither to turn or where they were being led. One of the Commissioners, Mr Rothery, is Registrar of the Court of Admiralty, and another Commissioner, Mr Francis Dobson Lowndes, is District Registrar at Liverpool. What they really had to see was whether the present limits of jurisdiction are of advantage or disadvantage to the public. In 1871, there were 335 Admiralty cases brought in 23 County Courts having Admiralty jurisdiction :— 80 at Liverpool; 58 at Yarmouth; 39 at Cardiff; 33 at Newcastle; 29 at Hartlepool; 17 at Kingston-on-Hull; 10 at Swansea; and few in number in other Courts. In the City of London Court, before Mr Kerr, there were 191 cases, making, with the above 335 cases, a total of 526 cases. [Parl. Paper, July 10, 1872, No. 292.] In 1872 there were 354 Admiralty cases instituted in the County Courts, and 151 in the City of London: of these 92 were at Liverpool; 60 at Cardiff; 46 at Yarmouth; 32 at Newcastle ; 21 at Kingston, and 17 at Rochester. [Parl. Paper, No. 123, March 21, 1873.] At Cardiff most certainly the present jurisdiction and the exercise of it by Judge Herbert has given entire satisfaction. LElse- where also there may be approval. The limits of jurisdiction are, in salvage when the property claimed is not more than £1,000, or the amount claimed does not exceed £300; claims for towage, neces- saries or wages to £150; damage to cargo, or damage by collision, when the claim does not exceed £300; and claims relating to the use and hire of a ship or carriage of cargo not exceeding £300; or to any amount in any of the above cases, by consent. This is the jurisdiction which the County Courts possess, and it is the 9th section of the 31 and 32 Vict., ch. 71, and section 2 of the 32 and 33 Vict., ch. 51, which the Commissioners would repeal. Under the column of Appeals [Judicial Statistics for 1871, p. 17] from the County Courts there are four appeals stated to have been made from the City of London Court close to the Court of Appeal, and as regards all the other Courts it is 0; but at page 32 the appeals are stated to have been 10—namely, five in London; for Hull, Newcastle, and Liver- pool, one each; and for Bristol, two. In 1872 there was one appeal from the City of London Court, and ten from County Courts [| Parl. Paper, No. 123, 1873]. In the High Court of Admiralty in 1871, only 329 causes were instituted, and in 1872, 384. It is the Court of Admi- ralty itself which needs reorganisation. The number of days this Court sat in 1872 [Parl. Paper, No. 489, 1870], in Court or in Cham- bers, was only 107. How many days in Court only and how many hours are not stated. It has one Registrar [£1,600]; one Assistant Registrar [£1,198]; one Chief Clerk [£700]; three first-class Clerks, 148 On County Courts. five second-class Clerks, eight third-class Clerks. The total expenses are £11,092 annually. The County Courts appear to have relieved it from a large portion of its work and to the satisfaction of the public. By the Admiralty Act, 1868, section 13, “The J udge of the County Court having Admiralty jurisdiction is to hear Admiralty cases at his usual Courts, and at Special Courts which he is required to hold so soon as may be after he shall have had notice that an Admiralty cause has arisen within his jurisdiction.” He may be considered to be permanently on duty. The proposal of the Commissioners, if adopted, would indirectly almost destroy the County Court jurisdiction in Admiralty. If it is not destroyed, this reform should be made at the earliest moment—namely, that there shall be no temptation to get Admiralty costs in cases where the costs in another Court are less, and both Courts have jurisdiction. 4978.—“ Have you found,” it was asked, “a difficulty in admi- nistering the Common Law with your Admiralty system, applicable to the same sort of thingP Certainly. A case of this kind was tried before me at Cardiff some time ago,—a case for damage to cargo. It involved only a question of £8. It seemed as if in order to enhance the costs the plaint was taken on the Admiralty side of the Court. The costs were very much greater indeed than if the plaintiff had sued on the charter-party on the Common Law side. I could not deal with it in the way I wished by disallowing the extra costs.” [Mr Herbert, J.C.C.] 10. “We recommend that all cases in the County Courts should be dealt with by one uniform procedure, and that the existing dis- tinctions as to Common Law, Admiralty, and Equity cases should be abolished.” [By the Supreme Court of Judicature Act, 1873, 36 and 37 Vict., ch. 66, section 89, this suggestion has become law. | The evidence of Mr George Lake Russell, J.C.C., is, as respects the Equity jurisdiction, the most important of all evidence given to the Commissioners. His assistance in organising an improvement of the present system ought to be requested by the Government at the earliest moment. He says: “IT am of opinion that, to render the equitable jurisdiction of County Courts really useful, it ought to be increased, but that, if that is all that is done, the benefit will be very limited. “The jurisdiction has not at present beén as useful as I think it ought to bave been, and I attribute this to the following causes : 1. “The adoption of the system of ‘pleading’ instead of the simple form of ‘summons,’ with ‘ particulars ’ where necessary. 2. “The fragmentary jurisdiction given to the County Courts. 3. “The existence of a concurrent jurisdiction in the Court of Chancery. 4. “The large amount of Court fees, On County Courts. 149 “Tt will be recollected that the mode of procedure by ‘summons’ has worked admirably in the Court of Chancery under the Chief Clerks in the administration of real and personal estates to any amount for creditors, legatees, and others, and in applications under the Trustee Acts and Trustee Relief Acts where the property does not exceed £500. “Tthink that in a very great number of cases a summons with- out particulars will be found sufficient. There will, however, be cases in which, from devolution of title or other circumstances, a simple summons will not suffice, and a narrative or statement of facts will be necessary. This may be provided for by the ‘ particu- lars.” It might be unwise to leave it to the parties to determine in any case whether ‘ particulars’ are necessary or not. A check to needless expense seems wise, and it would be better perhaps, there- fore, that without the leave of the Court ‘ particulars’ should not be filed.” Mr Terrell, J.C.C., makes what appears to be a very excellent suggestion: ‘‘I would concentrate all the Equity business of a dis- trict in central towns, where alone I would hold a Court for Equity causes, and there I would place an Hquity Registrar, who should not be an attorney, but a clerk from the offices of the Registrars or of the Clerks of Records and Writs, or one who had been a managing clerk of some large Chancery house of business in London, and to whom all the NWquity fees of the district would probably be a suffi- cient remuneration. Iam sure the existing Registrars would gladly renounce them to be rid of the business, and I should not be sur- rised to see the fees greatly increase. “Tt should be the duty of the Registrar to communicate freely with all the solicitors and by his advice and assistance to keep the proceedings of the Court in a state in which they are far from being at present. The Registrar should be in constant communi- cation with the Judge, under whom he would act as Chief Clerk in Chancery. “The accounts and inquiries directed by decrees in Equity are always more or less (in cases from the country) of a local nature ; they are carried through in the offices of the Chief Clerks ordinarily by means of affidavits sent up from the country, a process attended with infinite delay and expense, and by no means satisfactory in its results ; why should they not be remitted by the Superior Courts to the County Courts for a report and certificate ? With the assistance of his Equity Registrar the Judge would speedily and economically dispose of such matters on the spot where all the witnesses reside, and as to any questions of Law which might incidentally arise he should bave the power of certifying them specially to the Court, above. By this means the Chief Clerks would be relieved from the 150 On County Courts. surfeit under which I understand they are labouring, and country practitioners would become gradually instructed in the principles and practice of Equity, so that the Chancery jurisdiction might, after some time, be safely enlarged. The present Registrars would not, I think, be competent for those duties, but with duly qualified Equity Registrars there would be no difficulty.” Mr Pitt Taylor, J.C.C., states that when Equity proceedings were intro- duced into the County Courts, the learned gentlemen who made the rules seem to have thought that it was necessary to introduce all the jargon of Equity, and I might almost call it the slang of Equity, to have “‘ orders” and ‘‘ decretal orders,” ‘‘references,” “‘decrees,” and all sorts of fanciful phrases. There is no magic in the word Equity. There is no reason in the world why a Judge should not deal with an Equity case in the same way as with a Common Law case. I make an order that A.B. delivers up a certain document to C.D. I make an order that A.B. does certain things, and I enforce that orderin a certain way. The only case in which there might be some difficulty would be in the case of administration suits. An administration suit is where the Court is called upon to perform the duty of an executor, and to draw up all the different forms and calculations which are required in passing an executorship account. I dare say some of the members of the Commission have acted as executors, and know the different things they havetodo. This is very troublesome business, and therefore it is the pee always in Equity for the Judge to say, ‘‘ This is rather adminis- trative than judicial work, and I will not be troubled with it,” and he refers it to the clerk or to some inferior officer to do the work ; but that is not necessary, because all that is necessary is this, to adjourn the Court for a fortnight or a month, and to call upon the party, if he be the defendant, as executor, to produce his accounts in the same way as he would do at Somerset house, explaining what the debts were, and to do that upon oath, and the whole business, with one or two adjournments, might be done without there being any necessity at all for an order, or a decretal order, or anything else except the final judgment. The final judgment is this: Here is a certain clear balance made out, and that has to be paid over in a certain way. That I put as the most complicated case that can arise in Equity in our Courts. [8,945.] As many of these Equity Courts as possible should be where there is a Chief Probate Office; but the Judge should hear con- tested cases where most convenient to witnesses. Mr Wason, the Registrar of the County Court at Birkenhead, of whom the late Mr A. Johnes, J.C.C., was accustomed to speak in terms of much praise, says [page 88]: “ From many conversations with my brother ‘Registrars and practitioners I am satisfied that the non-success of County Courts as Courts of Equity arises from the fact of pleadings being requisite instead of the absence of pleas as in the Common Law departments. Country attorneys, 99 out of 100, are utterly ignorant of the procedure in Chancery. Much time is lost in mastering the modus operandi under the rules and orders in the County Court and with a risk at last of arriving at a wrong conclusion, and it is much easier and safer to send instruc- tions to a London agent (who is aw fait atall points), which are comprised in half a sheet of paper. If pleadings were abolished On County Courts. 1$1 in Equity, the same as in Common Law, I believe the County Courts would be much resorted to in Equity cases.” __ “The proceedings want simplicity : many professional men are unacquainted with the practice, and it is their interest to resort to the Court of Chancery.” Mr Hastham, solicitor and Reg. C.C., Clitheroe. [p. 91.] ‘In a London Chancery suit the first thing is to work up the whole estate and get it into Chancery, and then the point in dispute is examined into.”—‘“ The country practitioner is at the mercy of his London agent.” Mr Coppock, solicitor and Reg. C.C., Stock- port. [p. 90.] In connection with this part of the subject is a most important suggestion of Mr Gurdon, late J.C.C., which ought not to be dis- regarded. “Give,” said Mr Gurdon, “the County Court jurisdiction to grant probate and administration in cases of small amount. The present law is a dead letter to the labouring classes, and the too frequent result is that the son or daughter at home sweeps away everything, thus making possession something more than nine- tenths of the law.” Since this was proposed, the Act of 36 and 37 Vict., ch. 52 [1873] has passed, giving relief to the widows and children of intestates when the personal estate is under £100, and enabling letters of administration to be taken out through the aid of Registrars of County Courts. It ought to be extended to cases of probate. Members of a family should be empowered to come in and informally ask for the settlement of accounts relating to the estate of a deceased person at the earliest moment, for small properties soon disappear, and it is urgently necessary that County Courts should have the power to enforce the production of testamentary papers for the purpose of being proved and to transfer them to the proper registry. s . Mr Wildman, J.C.C., represents the costs of equity proceedings to be monstrous, and that a radical reformation is required of the rules of proceeding and table of fees and costs, with a view to expe- dite proceedings, to reduce expense, and to render it as difficult as it is now easy for unscrupulous practitioners to accumulate costs. “The Equity fees are high, and the fee on executions is oppressive.” [Mr G. Collins, Reg. C.C., St Colomb. ] : There was only one appeal in Equity from the County Courts in 1871 [Judicial Statistics, 13], and there were six appeals out of 683 causes instituted in 1872 [Parl. Paper, No. 123, 21 March, 1873]. 10. Court fees to be payable by stamps. 11. High Bailiffs will be unnecessary. “The High Bailiffs, if they do their duty, have a very onerous 12 On County Courts. task in looking after the Under Bailiffs, who are too often men of alow grade and ill adapted to resist the special temptations to which they are exposed. The High Bailiff of this Court isin daily and constant attendance, seeing that the Under Bailiffs do their duty. The Registrars of the larger Courts have quite enough to attend to without looking after the Under Bailiffs, and as vacancies occur in the office of High Bailiff, I am satisfied more machinery will be required instead of less.” [Mr Wason, R.C.C., Birkenhead.—p. 88.] 12. The Registrar to deal with the small class of cases [ante, pp. 72, 73]. 13. Convenient centres to be fixed, where a Judge shall ordi- narily be found. [The Judge should reside where he can in an hour or two reach his district, and not, if possible, within it. Residence in London of a Judge having a country district may cause arrange- ments to be made more convenient to the Judge and his family than to suitors of his Court. | 14. Centre towns for hearing disputed cases to be selected. By such an expedient “the burthen of attendance will be intolerable ; suitors will be forced into the hands of the professional members of the partnership, and a forced increase will be given to the multitude of profit-yielding suits.” [Bentham on Natural and Technical Pro- cedure Compared. | Mr Oollins, of Bury St Edmunds, was asked: [2,884] Do you think, supposing there was a central circuit place at Bury St Edmunds, at Yarmouth, and at Ipswich, theré would be any com- plaint if the more important County Court cases were sent there for trial P—“ Yes. Those are the three Bankruptcy Courts at present. T think the feeling of the country generally would be against it. I think parties like to have actions tried in their own particular immediate neighbourhood.” “T think it would be attended with much inconvenience; and as to arranging for the trial of the more important business at some central place, the necessary attendance of the parties and their wit- nesses there, instead of, as at present, for the most part at their own doors, would put them to almost as much expense as sending them to the assizes.”” [Mr Serjeant Miller, J.C.C.] Bvery single attorney the writer has spoken to on this subject condemns the proposal. It shows a want of knowledge respecting the transaction of business in Local Courts and the economy of the ent system [ante, p. 49. Pre. Gat ee mor he bse is small, should be dis- tinued” [ante, pp. 41, 42, 47, 48. ae Mr eae. 16 C. and one of the Commissioners, said : [4,223] ““T think we have had it in evidence, from a source on which we might rely for that purpose, that some sixty or seventy Courts, at all On County Courts. 153 events, might be either destroyed or merged in others.” If the Commissioners have arrived at this conclusion they have committed an unpardonable error, and have adopted exceedingly narrow views respecting the purposes and usefulness of the County Conrts. 16. “ It will be no longer necessary to retain the existing Local and Inferior Courts of Civil Jurisdiction.” They should, no doubt, be abolished, or the procedure, so long as they exist, should be assimilated to that of the County Courts. On these Courts Mr Malcolm Kerr, Judge of the City of London Court, says: ‘The Passage Court of Liverpool, the Manchester Court of Record, and others of a like nature, exist, I believe, only for the benefit of the attornies who practise in them. Liverpool has peculiar advantages as a sphere of professional activity.” [P. 87.] * * * “T haveseen so many actions brought against defend- ants residing at a distance, in respect generally of goods sent to them which they had never ordered, that I consider no summons should be allowed to issue for a claim not exceeding £20 unless the defendant personally dwells or carries on business in the district of the Court [issu- ing the summons]. It is a grievous oppression to compel a small shop- keeper to come up from Yorkshire, Hampshire, or Devonshire, to defend a case in London. I have had many of such cases when even a successful result was a great loss to the defendant. And in many the defendant has written to complain of the plaintiff and to state his inability to appear and defend what, on his statement, appeared to be an unfounded claim. There are many persons carrying on business in the metropolis and selling goods by travellers in the coun- try who speculate on defendants not coming to Court to dispute their claims; and a similar class of traders are to be found, I doubt not, in all the great towns. It would be of no use, therefore, to lay the restriction I propose on the County Courts unless their jurisdiction was made exclusive ; for these speculative plaintiffs would resort, as they now do in many cases, either to the Superior Courts or to the Local Courts of Record, wherein the proceedings are more oppressive to a defendant ; first, by reason of professional costs becoming part of the claim against him; and, secondly, by reason of his being obliged to employ an attorney if he means to defend the action at all. The hard- ship is greatly increased in those cases which are brought in local Courts which have local Acts prohibiting any objection to the jurisdic- tion except by way of plea; for the defendant cannot even, when the Court has no jurisdiction, apply to a Judge at Chambers for a pro- hibition, but must enter appearance and plead to the action. Tventure to suggest that ‘ Local Acts > for the administration of justice are altogether inconsistent with a proper judicial organisation.” “The Chambers of Commerce, I observe, express a desire on the part of the mercantile community for tribunals of commerce. I U 154 On County Courts. venture to think that the County Court Judge, with nautical or mercantile assessors, would readily constitute such a Court, and I would, therefore, suggest provision being made for the County Court Judge and assessors sitting as a Tribunal of Commerce.” 17. “The salaries of the Judges should not be uniform.” Are their qualifications expected to be the highest obtainable ? 18. “Registrars and Deputy-Judges to be appointed by the Lord Chancellor.” Registrars ought not to be so, for the appointments should be made as free as possible from political considerations, and in borough towns the Registrars should be generally forbidden to take part in elections. Itis the interest of the Judge of the Court to make the best appointment in his power and he is controlled by the necessary approval of the Lord Chancellor and the certificates which accom- pany the nomination. If there were a change made in the present practice of nomination, corrupt M.P.’s would surround the Chan- cellor soliciting him to appoint electioneering agents. The Judge desires to associate himself with an honourable person who will care- fully and conscientiously do the work of the public and will not intercept the business of the Court by measures designed to promote private practice and check resort to the Court. There have been few complaints made against Registrars. 19. “The Commissioners anticipate a very considerable increase in the business of these Courts, and that the Judges, reduced in number, will have their time fully and fairly occupied.” The County Court Judges would not complain if they had as much time unoccupied, obtained a long vacation, sat no more hours in many days of the year, were able to obtain as much rest at their own homes, had equal personal assistance, and had no more miles to travel in the year than the Judges of the Superior Courts. Probably the fullest information on this matter is to be found in the replies of the County Court Judges to the Treasury Minute proposing Cir- cuit arrangements which would have inflicted an irrational degree of labour and of domestic privation on very many of the Judges. The number of the Judges ought not to belessened. The time occupied in travelling and its great discomforts are always disregarded in estimating the labour of Circuit work. Travelling is not without danger, and the writer, when on Circuit, was in one railway collision. The Commissioners ‘are satisfied that the plan they propose combines simplicity with uniformity in a great degree, and that efficiency and economy will result from it.” ; These are the results of their “attention to ascertain the prin- ciples upon which the reorganisation of the Inferior Courts of Civil Jurisdiction should proceed.” These principles then, whatever they « On County Courts. 155 may be, have suggested the service of writs by the agents of the plaintiffs and that the service should be personal; that the access to Courts shall be difficult; that the Judges shall be almost inacces- sible ; that the banking system, which is invaluable to all traders, should be abolished, and that nearly every step for the recovery of money shall be made as expensive to suitors as possible by rendering professional assistance necessary. Every County Court Judge has given evidence in defence of the interests of the public and they have been discredited in the proposals made by the Commissioners. The report is, by unintended anticipation, rebuked by the evidence given by Mr Hubbersty, Solicitor and Registrar of the Wirksworth Court :— “T am not prepared,” said he [p. 98], “to suggest, nor do I think any great change is required, in the procedure or constitution of the County Courts. I think the country would derive much benefit by a judicious extension of these Courts, if made in the interest of the suitors rather than in the interest of the Bar and Solicitors. The Courts give general satisfaction except to those whose object is a ‘pill of costs.’ They are the originators of all opposition to the extension of the jurisdiction and are the only parties who would condemn the system.” The Judicature Commissioners would alter the system but upon terms which would make it to be oppressive. Their plan will, in all probability, if adopted, make the County Courts execrated through- out the country. The economy contemplated will be obtained by surrendering suitors to plunder and unnecessarily burthening them with heavy expenses. The anticipated beauties of simplicity and uniformity will excite only the admiration of those whose approba- tion the Commissioners should reject. It seemed to be a harsh declaration of Bentham [ Works, vol. 9, p- 470] when he said: “That under every government as yet in existence the system of procedure has been the product of the Jabour of men whose interest it has been that—for their benefit— injustice, depredation, and oppression—so far as beneficial to the same sinister interest—should be maximised.” The Report of the Commissioners advocates few measures which will assist suitors, and the censure of the great jurist is still true. The apparently economical suggestions of the Report are delusive [ante, p. 138]. It is important to refer to the number of causes entered for trial in the Superior Courts in 1872. [Jud. Stat., p. iv.] Westminster. Nisi Prius. Remanets from 1871 . . 284 3 Stayed Causes. ‘ : 3 3 Entered for Trial . ; . 2,251—2,538 1,156 156 On County Courts. Westminster. Nisi Prius. Trials. : : eBoy i 748 Defended 3 : é 932 55 Undefended . ‘ ‘ 215 3 Withdrawn, struck out, &e. . 1,008 374 Remanets . : : i 382 34 Stayed . : 5 ‘ : 6 6 Total ; . 2,588 1,156 There were also 177 other causes tried, namely 172 from the Common Pleas of Lancaster, one from the Common Pleas of Dur- ham, and four from the Court of Probate. In 1871 there were 153 causes tried from the Common Pleas of Lancaster. The number of suits entered for trial on all the Circuits in 1872 was 1,461, and 925 were tried. [Jud. Stat., p. v.] Entered for trial, 1,461 [Jud. Stat., p. 11], viz.: Queen’s Bench . : 404 Court of Probate i 5 Common Pleas . F 222 Com. Pleas, Lancaster. 296 Exchequer ; : 530 Do. Durham . 4 Trials, 925, viz. : Queen’s Bench . ‘ 257 Court of Probate : 4 Common Pleas . ; 135 Com. Pleas, Lancaster. 172 Exchequer ; : 356 Do. Durham . 1 Applications for New Trials or to enter or alter a Verdict, or for Nonsuit or Arrest of Judgment in 1872 were: Refused . : a . , : . 188 Rule Nisi granted . ‘ & . 282 370 Such applications are, in fact, appeals to the Court in Banco. Rule Absolute on payment of costs. : 7 95 without costs . ‘ . 68 ‘5 question of costs reserved . 18 Rule discharged . ; : ‘ ‘ . 103 Court divided. ’ : ‘ i . 10 Rules were therefore made absolute in 88 cases. Vn rn On County Courts. 157 Some six years after the County Courts were established, an attorney of seventeen years’ standing wrote thus to the Law Times {Jan. 29, 1853, p. 183]: “I shall bring an action, not in the Superior Courts at Westminster, or for the next County Assizes, but in the monthly County Court, held at the scene of the loss, a few miles from us, and where all the evidence is to be had; this mode of bringing the point to an issue being very much cheaper, more convenient, and speedier, with the great advantage, too, of having the case decided by a painstaking, sensible, and impartial Judge, instead of being exposed to the pie-bald, capricious, and guess-like verdict which my experience teaches me to fear as too probable from a county or even a Middlesex jury. Those sitting in high places know very little of the real estimation in which these local jurisdictions, with all their real or fancied defects, are held by the multitude, or their moral and striking effects on the country.” Among the results of the establishment of the County Court system have been : First. In bringing into operation the proposals of Mr Bentham, in his celebrated work on Evidence, to permit the examination, as witnesses, of parties and interested persons. The County Court Act of 1846 [9 and 10 Vict., ch. 95, sec. 83], provided, that on the hearing of any action the parties thereto, their wives, and all other persons might be examined on behalf of the plaintiff or defendant. The law had been that witnesses were incompetent who were inte- rested in the event of the suit, and the 6 and 7 Vict., ch. 85 [1843], removed this objection in most cases, but provided that parties to an action named in the record, or any persons in whose behalf an action were brought or defended, or the husband or wife of such persons, should not by that Act be rendered competent as witnesses. The experience of what passed in County Courts after the County Court Act of 1846 was in operation led to the passing of the Act of 14 and 15 Vict., ch. 99, sec. 2 [1851], which repealed the first part of this proviso of the 6 and 7 Vict., ch. 85, and made such persons who were parties competent. And by the Act of 16 and 17 Vict., ch. 83 [Angust, 1853], the proviso relating to husbands and wives was repealed, and by section 1 they were made competent as witnesses in all actions. These have been the most important changes in the law effected in modern days. They might have come about without County Courts, but certainly not for very many years later than they did had it not been for the expressed opinions of County Court Judges. When the Evidence Bill of 1851 had passed the House of Lords, the following remarks were printed in the Law Times of July 5, 1851, p. 121: “Seemingly unconscious that the future prosperity 158 On County Courts. of the Superior Courts is dependent on the success of this measure, the Law Institution petitioned the House of Lords against it. The House of Lords paid no heed to the petition. Not a solitary peer could be found to support it by his vote.” Who would restore the old law? Law Reform will not come from Law Institutions. “Greatis Diana of the Ephesians.” Secondly. The County Courts have caused the abolition of the old County Courts, the Manor and Hundred Courts, and Courts of Requests, and, it is to be hoped, will cause the abolition of or a great reform in all Local Courts of Record which remain. Thirdly. They have checked the oppressive system of orders for the immediate payment of money which defendants could by no possibility pay in one sum. Fourthly. They have caused an end to be put to imprisonment in satisfaction of Judgment debts. Fifthly. They have caused to be checked the practice of resorting to the Superior Courts in petty actions instituted for the purpose of obtaining costs. [C.C. Act, 1867, sec. 5.] Sixthly. They have made the way free to all persons to have the aid of the law, and to obtain a hearing of themselves and witnesses without necessarily incurring any professional charges, and without being tripped up by pleadings or being entangled in legal technical- ities. [Ante, pp. 18, 19, 28.] Seventhly. They have illustrated the enormous extent to which suitors are plundered and have been plundered in the Superior Courts through needless and prolix pleadings. The annual saving in money which the Courts have caused to persons needing legal assistance and protection, if estimated at the lowest reasonable cal- culation, would amount to what would sound enormous, and the Courts have relieved suitors, in thousands of instances, from that which is never to be disregarded, namely, the long and painful anxiety of tedious and expensive litigation—the fruits of daily dis- appointment, vexation, and delay. ; Eighthly. The Admiralty jurisdiction given to the County Courts [31st July, 1868] must have been a great advantage to per- sons connected with shipping interests. What is ueeded is an improvement of the system and the reduction of costs. . “The County Courts Admiralty Jurisdiction Act, 1868,” gives jurisdiction in the cases before mentioned [p. 146], and by the Act of the 32 and 38 Vict., ch.51 [2nd August, 1869], jurisdiction is given as to any claim arising out of any agreement made in relation to the use or hire of any ship, or in relation to the carriage of goods in any ship; and also as to any claim in éoré in respect of goods carried in any ship, provided the amount claimed does not exceed £300. The third section, also, of the Act of 1868 On County Courts. 159 was extended to all claims for damage to ships, whether by collision or otherwise, when the amount claimed does not exceed £300. The County Court, under its ordinary jurisdiction, can only entertain a claim for demurrage to the extent of £50. Under this Admiralty jurisdiction it can entertain a demurrage claim to the extent of £300. An instance of a claim to the amount of £129 is printed in the Appendix to these pages. The parties preferred to come to the County Court rather than sue in a Superior Court. Does not such a proceeding afford a reply to the Right Hon. Sir J. Collier, or to Chief Justice Coleridge, who thought it deserved con- sideration whether, under an improved circuit system, some portion of the jurisdiction of the County Courts could not conveniently be transferred to the Superior Courts? What portion? It is not mentioned! The fact is that, to commercial men, delay is a serious injury. Ifaship is in port, and the witnesses in a cause are present who may be in a short time in a distant part of the world, the immediate hearing of the dispute is of infinite importance. The Judicature Commissioners propose to reduce the exclusive Admiralty jurisdiction of the County Courts to £50!! [Rep. p. 15.] The following should have been inserted in a previous page: ‘«T wish,” says Mr Nelson [p. 210], ‘‘there was a little more discretion left with the Registrar as to whether he was or was not to issue a warrant of arrest. I think the practice in the Admiralty Court is a little looser even than it is in _ my Court. A man may obtain a warrant of arrest there almost as a matter of course. I think that is a thing deserving of consideration.—I certainly think that some officer ought to be responsible to a greater extent than he is now, or that he ought to have greater power.—They actually may arrest a vessel on the ound that they have done work to her, and that she is going out of the juris- iction, although the owners of the vessel may be living in the City of London, and be perfectly solvent persons.”—Is that power often used? I have issued a great many warrants of arrest for small amounts.—I suppose that compels payment very promptly ? Clearly.—In the Court of Admiralty there is a caveat warrant, by which owners may enter a notice in the books of the Court of Admiralty warning pease against arresting their vessel, and undertaking to give bail, and that has to a great extent prevented the arrest of vessels: there is no such jurisdiction in the County Court. Ninthly. Many instances can be given of the advantages of the Local Equity system, established under the 28 and 29 Vict., ch. 99 [5th July, 1865], but the system needs improvement, and the juris- diction should be extended to £1,000 at least. There were 683 Equity suits instituted in the County Courts in 1872, and there were two appeals. Of these suits 225 were for the administration of estates. The amount of the subject matter in dis- pute was £105,491. The costs of attorneys allowed amounted to £5,199. On June 27, 1851, Lord Wharncliffe presented a petition to the House of Lords from the borough of Leeds against two Bills before 160 On County Courts. the House with reference to the extension of the County Court jurisdiction to cases of Bankruptcy and Equity on the ground that the duties of the Judges of County Courts were already extremely onerous [Law Times, 5th July, 1851, p.122], Lord Campbell on that occasion presented a petition in favour of the extension of the jurisdiction of the Courts, and said: “It was highly desirable the County Court Judges should not be overworked.” The two Com- missioners in Bankruptcy at Leeds were Messrs Martin J. West and W. Scrope Ayrton, and the salary of each was £1,800 per year {Parl. Paper, No, 124, 22nd March, 1861], and £250 a-year each for holding a Court at Hull. [Parl. Paper, No. 308, Finance Accounts, 2nd June, 1862, p. 178.) The number of days that Mr Ayrton sat from October, 1861, to April 11, 1862, were seventy-four, averaging two hours and forty minutes each day. In the same time Mr Martin West sat fifty-three days, averaging three and a-half hours in each day. [Parl. Paper, No. 8385, 18th June, 1862.] Some persons at Leeds, in the year 1851, professed to be interested in the health of the County Court Judges. A local Equity jurisdiction had become an imperative necessity. Now it must be made so extensive and complete as to cause as great an effect on the London Chancery Agency houses as the County Court system has caused on the London Common Law Agency houses. The costs in the High Court of Chancery of an administration suit were thus stated in the Times: Proceeds of real estate and invested dividends, £ os. d. by the Accountant-General. . . . . . 717 310 Payments : £ os. d. Plaintiff’s solicitor’s costs . . 449 14 2 Defendant’s solicitor’s costs. . 234 8 4 684 2 6 Fees on taxation . .... 418 5 1 702 7 6 Balance for the parties . . . .. . £14 16 4 A County Court would have had no jurisdiction in this case, but no error of judgment at the hearing, or County Court charges, could have produced such disastrous results to those seeking protection in a County Court. The writer was, in 1852, administrator formally appointed to close a suit in Chancery in which the parties interested lived in Canada: the sum in dispute was £5,000. He immediately closed it without reaching any decree in the case, a division of the money being agreed on, and the costs, taxed by Mr Follet, came to ne ! The question may be asked, What is taxation in such cases On County Courts. 161 3,179. [Mr Justice Quain to Mr Marshall] : We have been told that the County Court costs of Equity proceedings are larger than those in the High Court of Chancery ; that an administration suit is more expensive in the County Court than in the Court of Chancery, Have you any experience of that? Lhave had adininistrations, and have administration suits in the High Court of Chancery, in my practice as a solicitor; but what you say is quite new to me, and I am bound to say that I think it will be new to the majority of the practising solicitors, that the costs in the County Court are anything. like what they are in the Court of Chancery. I question whether an administration suit could be worked in the Court of Chancery, taking one case with another, at under £100 or £150 ; you would consider yourself lucky if you got off with that sum ; but there are very few cases of simple administration in the County Courts which would cost more than £25, (Mr Barnes]: If the Registrars had the powers given to them that the Chief Clerks in Chancery have, proceedings would be more advantageously conducted. 3,185. [To Mr Clarke]: You do not suggest any alteration in the Court fees in Equity proceedings? No, not as regards fees. I think this Equity jurisdiction has a little failed in that respect, that there has not been as much business as might have been expected. But I attribute that to the fact that there is a concurrent jurisdiction in Equity in the Court of Chancery, and, as long as that exists, the solicitors and the profession generally will go to the Court which yields them the greatest profit. In other respects I see no reason to alter the Equity fees, nor have I heard any complaint. [See ante, p. 26.] How long will the Court of Chancery continue to be the great field of professional plunder? The plunder will be protected and reform will be impossible when the number of County Court Judges is diminished and contested cases are heard in central towns only. 32. I was concerned a few years ago in a foreclosure suit in the Court of Chancery, which was conducted at the least possible expense, and the costs of the plaintiff and an infant defendant, for whom I was also concerned, amounted as between party and party to £271 2s, 8d. The real defendant's costs were not known.—In a small administration suit in which I was concerned a few years ago, the taxed costs amounted to £530 19s. 6d.—In a recent application to the Court of Chancery to appoint guardians to an infant, the taxed costs amounted to £162 10s. 1d. [Mr Harward, solicitor and Reg. C.C., Stour- pridge.—p. 101.] : : T was solicitor in an administration suit, Morrell v. Butterfield, in Chancery, before V.C. Stuart, which lasted over three years ; the costs amounted to over £1,000. Had this administration been commenced in the County Court near which the parties resided, the costs could hardly have exceeded £150. [Mr Wason, Reg. C.C. Birkenhead.—p. 88. ] . er I can give an instance in this Court of a simple administration of partner. ship accounts at £23 18s. 2d., and a foreclosure suit at £17 16s. 6d. Without being prepared with any similar suits in the High Court of Chancery, I may say it is well known in practice that the simplest suit would cost several hundred pounds. My experience of Chancery suits in aes goes to prove that many hundreds [thousands ?] go to the London solicitors and counsel, (Mr Carlyon, Reg. C.C. St Austell. : : 2 3,187. (Chairman.) Have you any suggestion to make with regard to ex- tending the jurisdiction of the County Courts in Equity cases? I think it x 162 On County Courts. most desirable to make the jurisdiction in Equity in the County Court co- extensive with the whole range of Equity jurisprudence. It seems to me quite anomalous to say that, supposing there is a case for relief, and it is a small case, the man should not have that relief in the Court which is most com- pt to give it to him at a small cost, namely, the County Court, because it oes not happen to fall within a very arbitrary line which divides Equity juris- rudence in the Superior Courts from Equity jurisprudence in the County Courts. Marshall. An Brat suit in the Court of Chancery is an unknown quantity as to costs; so much depends upon the practitioners. No one in the country goes into that Court without fear. The country practitioner is at the mercy of his London agent, and nearly all he knows of the suit is his half-yearly agency bill and the payment thereof. In a London Chancery suit, the first thing is to work up the whole estate and to get it into Court, and then the point m dis- pute is examined into. The absurd inquiries which have to be gone into, even in an insolvent estate where there are infants, would hardly be believed.— The Chancery of Lancashire is less costly, but too much so. The system of pleading makes every step requisite to be taken under the guidance of counsel, and a great mass of written and printed matter has to be waded through by the Judge. The simplicity of the County Court saves much cumbrous, unnecessary, and very costly matter. [Mr H. Coppock, Reg. C.C. Stockport. ] There is sufficient work to be done to employ more than the present number of Judges if the House of Commons could canse to be effected real, substantial, and necessary reforms in the Law. The attacks on the County Courts are not made for any other purpose than to promote the sinister interests of those who injure suitors. The Judicature Commissioners say: “The proposal we have made, that the County Courts shall have jurisdiction, unlimited by amount, will abolish the existing restriction by which they have jurisdiction in Equity matters only to a certain amount and in certain pro- ceedings only, and will extend the jurisdiction in Equity of the County Court to all matters cognizable to the High Court.” [Rep., p. 15.] The satisfactory working of such a change will depend on the mode of procedure. These things are important: the pressing on a case to its.conclusion as soon as possible, the personal examination of the parties, and the getting rid as much as possible of affidavits and formal papers. The good lawyer prays, as respects a Chancery suit, in the words of Thomas Aquinas: Ingresswm instruas; pro- gressum dirigas, et egressum complias. The lawyer who is a rogue forgets the duties of advocacy, and becomes the confederate and accomplice with villainy, and especially endeavours to retard the progress of a suit. (Ante, p. 149.] The following passages indicate, the value of the suggestions made by Mr G. L. Russell: For some years past the estates of testators to any amount, however large, had been administered in the Court of Chancery by a proceeding commenced by simple summons, in which the object alone is stated, without any narrative On County Courts. 163 of facts, and an order is at once made on that summons. . . . Some con- siderable time since (and in 1866 I think) I prepared a set of forms of proceedings in Equity in the County Court by summons, copies of some of which I annex in the first schedule to these answers. ‘Che principle of them is that, like the ‘‘summons” in Chancery, the summons states the object only of the suit, without any narrative or statement of facts ; that in those cases in which such a narrative or statement of facts is necessary, the summons should be accompanied by ‘‘ particulars,” thus (which I think important), adhering to that form which is generally and well understood by suitors as well as attorney in County Courts, namely, ‘‘summons,” with ‘‘particulars” where necessary. It will, I hope, be seen how completely that form is applicable to. Equitable jurisdiction. _ The forms in the first schedule include, I believe, every head of Equitable jurisdiction en by the Act of 1865 except sec. 1, clauses 5 and 6, to which also, except the affidavits upon which a trustee is to pay money into Court, and which must state the facts of the trust, the forms may readily be adapted. The Act of 1867 (30 and 31 Vict. cap. 142, s. 27) removes all diffi- culty as to the construction of the Act of 1865, by enacting that any pro- ceeding in Equity in County Courts may, if so directed by rules and orders, be commenced by summons. It will be recollected that the mode of procedure by *‘summons” has worked admirably in the Court of Chancery under the Chief Clerks in the administration of real and personal estates to any amount for creditors, legatees, and others, and in applications under the Trustee Acts and Trustee Relief Acts where the property does not exceed 5001. . . . Except in special cases, and then only by leave of the Court, no written answer should be required, and, whenever an answer is required, it should be put in upon oath. Vivd voce evidence should be used as much as possible. [G. Lake Russell, J.C.C.] Tenthly. Jurisdiction in Insolvency was given to the County Courts by the Act of the 10 and 11 Vict., ch. 102 [22nd July, 1847], and the Circuits of the Commissioners of the Court for the Relief of Insolvent Debtors were abolished on the 15th of Sept., 1847. [sec. 10.] Inthe Preface to Macrae’s Insolvency [1852], p. xiv., it is stated, “that the County Court Judges were compelled to do for nothing the work of the learned Commissioners in Insolvency, who received their salaries although their Circuit business was performed by the County Courts. The ostensible reason for this transfer of Insolvency business was to save the comparatively small travelling expenses of the Commissioners on Circuit.” By the Act of the 24 and 25 Vict., ch. 184 [B.A., 1861], sec. 20, it was provided, that the jurisdiction of the County Courts in the relief of Insolvent Debtors should cease. By section 3 the Judges of County Courts were to have like jurisdiction as was vested in the Commissioners of District Courts of Bankruptcy, and [sec. 4] on a vacancy in the office of Commissioner of any Country District Court there was no longer a Commissioner for such district. This Act was repealed from the 31st of December, 1869. Under the Act of 1869 the Judge of County Court has unlimited jurisdiction in Bankruptcy. The new Act has not worked well 164 On County Courts. in the collection and distribution of assets. ‘The whole sclieme of the Act is to ignore, so far as practicable, official aid, and to entrust the winding up of the estate to a trustee under the inspec- tion of a committee of creditors, all elected by and acting under the governing power of the general body of the creditors.” [Gilmour “On Bankraptcy.”] In this it has been a failure. There are too many forms and too many papers for ordinary creditors to deal with. The Comptroller in Bankruptcy states that “‘The Solicitor to the Trustee’ has become an appointment practically, as regular as the ‘Solicitor to the Assignee’ under the former system, although the trustee is usually highly paid and most frequently an accountant or a solicitor, while ‘the assignee’ was neither paid nor professional.” [Judicial Statistics, 1873, p. xxii.] One of the best provisions of the Act is the 72nd section, though it was declared in a Court of Appeal, “that the world had been startled at the extent of the jurisdiction assumed under it.” [Hx parte Lyons, L.R. 7 Chan. App., 497. ] There has been a suggestion made in “ Flini’s Gazette,” [14th August, 1873] in these words: ‘‘It is desirable that many of the details should be worked out by the Judges in Bankruptcy them- selves. They are men of honour and position. They are responsible to the public for their conduct ; and if they in public are made to do the leading bankruptcy business of the country, there would, per- haps, be some chance of its being freed from the fraud and extrava- gance that still clings to it. But delegate the business to inferior men in private rooms, and then the fraud and extravagance will still accompany all bankruptey proceedings.” Such assistance on the part of Judges should be claimed in an informal manner, and at the least possible cost. It would prevent misconduct ‘‘in private rooms,” and force on the termination of a Bankruptcy. At present there are too many papers, and too much formal work. Informal applications to a Judge to call the trustee, accountant, or solicitor before him to ascertain the state of affairs, with power to make orders on such occasions to facilitate the winding up of an estate, ought to be sanctioned; and the Court should have power to check the employment of accountants and solicitors. _ Q. [1]. Isitin your opinion desirable to increase or lessen the jurisdiction of the County Courts, and if so, to what extent ? (The names in Jtalics are those of Judges who have died or resigned si 1869. Circuits 10, 34, and 56 have been aeeepasked | Sores rv Blanshard . . . 1. To any extent; exclusive to 1002. Stapylton. . . . 2 Should be inercased ; not lessened. : On County Courts. 165 Ingham... 3. To any amount, subject to removal by either party in cases above 5001. Hulton. . . . 4 To all civil causes. Serjt. Wheeler . 5. To a actions, without reference to pecuniary imits. Blair... . 6. To 1002. in contract, and 201. in tort. Harden . . .. 7% Plaintiff to have power to sue irrespective of amount, and the defendant power to remove the action. J. A. Russell, Q.C. 8. Increase the jurisdiction. Yates. . . . . 9 Common Law to 1000. ; Equity to 1,0000. Greene . . . » 10. To all cases. Daniel, Q.C... . . 11. To contracts, 1002. ; to tort, 202. ; ejectment, 501. rent ; administration, trust, and partnership, 5,0002. ; mortgage and specific performance, 2,0001., &e. Stansfeld. . . . 12 In Equity to 1,000/. ; Common Law, 100. or 2001. Ellison . . . . 13. Increase. Marshall. . . . 14. Increase to any amount subject to removal. Turner. . . . 15. Unlimited jurisdiction in actions on contract. Raines . . . . 16. Increase. Teed, Q.C. . . . 1%. Increase, and in Equity to 1,0001. Wildman. . . .« 18. 1002. in Common Law; 1,000/. in Equity. G. Russell . . . 19. ‘To causes of any amount and any description. *Serjt. Miller . . 20. Not desirable to increase or lessen it. Welford . . . . 21. To1002. in Common Law, and in Equity to 1,000/. *Dinsdale. . . . 22. Not desirable to increase. Kettle . . . . 28. The Courts should be worked in harmony with and auxiliary to the Supreme Courts. Herbert . . . . 24. Common Law to 500I. Skinner . . . . 25, If increased, should be unlimited and include all causes. Spooner. . . . 26. No apparent reason to fix any particular amount as a ; *Josiah Smith, Q.C. 27. No anoneass, por ge cases above 501. to be con- ned to London. A. J. Johnes. . . 28. To 3001. at Common Law, and 1,000/. in Equity. R. V. Williams. . 29. Increase. Falconer. . . . 380. Increase, and in Equity to 1,0002 Terrell . . . . 81. Cordially supports every extension of the Common Law jurisdiction. Cooke. . . . . 32. Increase. Worlledge . . . 83. Increase in personal actions unlimited ; in Equity and Admiralty to 1,0004. McTaggart . . . 84 Would not lessen; would remodel and expand the u system. Collyer. . . . . 85, Would increase. *Parry. . . . . 86. Would zot increase, but would give exclusive juris- diction up to 501. Whigham . . . 87. In contract, to 1001: tort, 500; in Equity and Admiralty, to 1,0002. Gurdon . . . . 88 Toany amount, with power to remove the cause. Sir W. Riddell. . 39. Increase. *Dasent . . 40. Not desirable to increase or lessen. Bagshawe, Q.¢. a Safely may be increased without limit of object or amount. 166 On County Courts. G. L. Russell . . 42. Would increase the jurisdiction. Sir J. E. Wilmot . 43. Would increase to an unlimited amount. *F. Bayley . . . 44. Not desirable to increase. Stonor . . . . 45, Increase, Whitmore . . . 46. To lessen would be to retrograde; we should ad- vance by increasing. Taylor . . . . 47. To increase; and County Court Judges to hear cases now sent to Under-Sheriffs. Lonsdale. . . . 48. Would increase, and the exclusive jurisdiction should be raised to a higher amount. : Scott . . . . . 49. To increase, and not to lessen. Furner . . . . 50. Desirable to increase. Gale . . . . . 51. Common Law jurisdiction should be urlimited in amount. Caillard . . . . 52. Equity increased to 1,000, and Common Law to 1002. Sumner . . . . 53. Increase; exclusive jurisdiction to 201. and con- current to 1004. Lloyd, Q.C.. . . 54. To increase to an indefinite extent. Lefroy . . . . 55. To increase. Saunders. . . . 56, There is no reason for lessening or for not extend- ing. : Serjt. Petersdorff. 57. Common Law jurisdiction increased to 1001; Equity and Admiralty to 1,000. Fortescue . . . 58 Increase to 1002. Bevan. . . . . 59. To1,0002. in Equity, and 3002. in Common Law. Kerr, City of Lond. Court. The jurisdiction should be unlimited as regards amount. The. Judicature Commissioners say : “We think that what is commonly called the exclusive jurisdic- tion in common law matters should be raised from £20 in contract and £10 in tort to the uniform limit of £50. The information we have received as to the costs of contested actions in the Superior Courts in claims to this extent shows that the expense is very large, in reference to the amount recovered, and seems to make such a change very desirable. “We recommend that the existing restriction of the jurisdiction of the County Courts to certain kinds of tort should be abolished, and that the jurisdiction of these Courts be extended to all actions of tort. These actions really are not more difficult than actions on contract, But whether difficult or not they will not, as a rule, bear the expense of trial before the superior tribunals. Actions of this description are frequently brought for purposes of extortion and costs. “Tn every case, upon the application of either party, there should be a power of transfer by leave of a Judge of the superior branch of the Court, sitting in Chambers, upon his being satisfied that the case is a proper one to be so transferred, or that for some special reason it ought to be heard and disposed of by a Superior Tribunal.” On County Courts. 167 When a judgment is removed from the County Court to the Superior Court [19 and 20 Vict., ch. 108, s. 49], it should be done on a simple order and the costs of transfer should be almost nominal. On the taxation of costs in the Court above, the costs in the County Court ought not to be disallowed. The following are particulars of costs on the transfer of a cause: Micuactmas Tzrm, 1861. £& os. d. Drawing and engrossing Affidavit to ground application for Writ of Certiorari (7 folios) . 0 7 8 Paid Oath F ; ; ; ‘ ‘ - O 1 6 Copy to keep . . : ‘ ; : / 02 4 Attending Judge, Order for Certiorari made . 0 6 8 Paid for Order and for filing Affidavit . 0 6 0 Writ of Certiorari and filing Order . 014 6 Writing to the County therewith . ; . 0 3 6 Attending Registrar of County Court therewith 0 6 8 Paid him to return same . : i i . 1 5 0 Searching for return and paid . 0 310 £317 0 All these charges are needless and oppressive. The cost of the removal ought not to exceed ten shillings. It is provided under the Supreme Court of Judicature Act, 1873,. article 19 of the schedule, “ That where, in any action, it appears to a Judge that the statement of claim, or defence, or reply does not sufficiently disclose the issues of fact in dispute between the parties,. he may direct the parties to prepare issues, and such issues shall, if the parties differ, be settled by the Judge.” The real issues in the County Courts are developed in the course of the hearing, and pleadings were objectionable because they were framed in anticipa- tion of contingent events. A Judge at Chambers may have his time fully occupied if he is to settle issues. The writer heard some cases: exceedingly well tried at New Orleans in Louisiana some thirty years ago. After the evidence was completed, counsel on both sides: handed to the Judge the questions they proposed to be put to the Jury. The Judge read them aloud, and then stated what questions. he should put to the Jury. [Jurist, 1858, p. 769, col. 1.] The Judicature Act 1873, sec. 75, provides for periodical meetings: of the Judges of the Supreme Court to inquire and examine into defects in the procedure and administration of the law. Bentham, in his Constitutional Code [sec. 19 and 20, vol. 9, pp. 502 and 504 ],, 168 On County Courts. wisely provided for the constant improvement of the law itself, under “ Judges’ contested-imterpretation-reporting-function.”” It has been stated that some measure is in contemplation to connect the County Courts with the Superior Court as members of the new Supreme Court. It is not obvious what advantage the public can gain by such a measure, and increased costs to suitors in the County Court would seem to be inevitable. Mr Ellison, J.C.C. [p.15], says, “I would allow a plaintiff, in every case, to choose his own Court, subject to the right of the defendant, upon grounds to be shown to a Judge of the Superior Courts, to move the cause from the County Court to the Superior Court, or vice versd, as the circumstances of the case, that is, the importance, complication, and difficulty, or the contrary, might seem to require. If, also, power were given to the Superior Courts in all cases to send down issues, inquiries, and interlocutory applications to be dealt with by the County Courts, the practical result would be much the same as if the County Courts were attached to and formed subordinate members of one Supreme Court. And I am in favour of keeping the County Court system, as a system, to itself’ And this will be the wisest course to pursue—“ keep the County Cowrt system to itself,’—it has been a successful system, and it has given content- ment to the public. The people of Croydon have anticipated the danger which impends, and the opinions they have publicly expressed will probably receive the general assent of all the towns of England and Wales. The public has been, in law reform, ill-served by Parliament, and the course of late legislation has been in the wrong direction. For example: by the 33 and 34 Vict., ch. 77, sec. 22 [The Juries Act, 1870], it was provided that jurors should be entitled to remuneration —special jurors, £1 1s., and jurors in common jury cases to ten shillings for every day of their attendance. The parties to a cause to be tried were to pay the above amount, and each of them were to deposit such sum of money as should be determined by a rule of Court, and in such manner and at such a time as the rule should rescribe. These provisions were thus spoken of by Mr Debenham Fount Courts Chronicle, Jan. 8, 1871]: ‘No doubt the framers of this statute foresaw that the effect of it would be to drive cases into the County Courts, and I, for one, intend to take every case under £50—that can be so taken—either before a Master, or into the County Court after issue joined.” Professional displeasure was so general that this 22nd section of “The Juries Act, 1870,” was repealed with such great despatch that the Act repealing it received the Royal Assent so early in the next session as February 28th, 1871. Parliament had assembled on February 9th, and no Act On County Courts. 169 received the Royal Assent before February 28th, nor after this day until March 380th. et sayS a common juryman, writing to the Standard, in ““Sir,—Can nothing be done to alleviate the misfortunes of us poor unfortunate victims to boasted trial by jury? Why should we be compelled (under a fine of ten guineas a case) to sit in Court the whole day through for virtually nothing? ‘I'he Judge gets a large salary, the counsel get their fees, the lawyers theirs, yet we wretched creatures get a douceur of 8d. per case, sometimes lasting two or three days. I am speaking of common juries now; specials get, I believe, a guinea. Since Monday, the 11th, till to-morrow, the 23rd, I have been compelled to dance attendance at the Guildhall, whether I was required or not, and being a business man, I consider the loss as at least five to ten pounds a day. . . . . Were our fees a guinea a case we wouldn’t complain, and there would be far less law, as the expense would be so much increased. I imagine the farce of the 8d. dates back to a time when such amount was a large sum. It does seem ridiculous that fifty or sixty men (all in business and of good position) should be obliged to stay on the spot all day long fora fortnight together, losing their time and money.” If the Judges of the Superior Courts were, as a rule, to hear cases without juries, as is the practice in the County Courts, the relief to jurors would be very considerable, and the results would be more satisfactory than they are with juries, for Judges who try cases without juries are bound to announce the reasons which govern their conclusions. It took nineteen days to repeal the provisions of the Jurors Act intended to benefit jurors which interfered with the pecuniary interests of some professional persons. How many years may it take before many thousands of defendants in the “Lord Mayor’s Court,” the Salford and Liverpool Courts, will be relieved from the oppressive exactions of costs which are imposed on them and from a procedure which precludes defence in very many cases P The Lord Mayor’s Court needs immediate reform, and its procedure should be the same as that of the City of London Court, The County Court at Liverpool should have the same jurisdic- tion which the Liverpool Passage Court now has, and the Passage Court should be abolished. . The Salford Court of Record should be abolished. Having a jurisdiction less in extent than the County Court there is nothing to ¥ 170 On County Courts. be said to excuse it from condemnation. The last writ of levy on oods which was sent from this Court into Glamorganshire, in December, 1873, was for 18s. 6d., and the costs were £1 2s. 6d. The costs of the County Court would have been 4s. 6d., including the costs of levy. It should be declared, that all Courts within a County Court Circuit shall be as if they were one Court sitting in different parts of the Circuit, and all the officers of such Courts should be enabled to act for each other in their respective Courts. In the larger towns the Registrar should be disqualified to carry on private practice. At Liverpool, for example, there should be one Registrar, and his time should be given to the duties of his office. A barrister might be qualified to hold the office, in order to secure the exclusion of private practice from the office. In Equity and in Bankruptcy cases the Registrars should be a moving power to push on causes to an early settlement and to pre- vent delay. They should be authorised to act as Official Bankruptcy Trustees and as Official Administrators controlling the ordinary Bankruptcy Trustees and ordinary Administrators or Executors— even when no attorney is employed—and under the instant control of the Judges of their Courts, to whom they should periodically report the state of every cause. Such provisions would effect a real and merciful law reform. Hixamined copies of bills of sale should be sent from the London office to be filed in the County Court office within the district of which the assignor lives whenever a bill of sale is registered. This would protect the local creditors of assignors without interfering with the ordinary trade inquiries of wholesale houses communicating with London. When there are unsatisfied judgment debts the judgment creditors should be enabled to administer the estate and effects assigned under a bill of sale, subject to the prior claims of a bond fide assignee. It should be permitted that judgments of County Courts for sums above £20 may be filed in the Superior Courts and to have the effect of judgments of such Courts. This is permitted to be done under the Salford Act and the Borough Court of Record Act, 1872, but it should be done on leave of a Judge of County Courts, and not merely on the leave of a Judge of the Superior Courts. The period of time during which judgment debts under £20 may be enforced should be very greatly reduced. Mr Gurdon proposes the repeal of so much of sec. 26 of the 19 and 20 Vict., ch. 108, which makes it necessary to send the verdict back to the Superior Court. When the cause is sent to the County Court it should remain as under sec. 7 of the Act of 1867. On County Courts. 171 Mr Justice Willes signed the Report so far as it related to the County Courts; Sir Montague Smith concurred so far as the Report related to the constitution and arrangements of the County Courts; Mr C. 8. Whitmore, a Judge of County Courts, concurred in the general scheme relating to County Courts, though he felt bound to express his belief that some of the proposals were calculated to impair the practical efficiency of the Courts and to abridge, without adequate cause, the advantages which suitors in them of the ordinary class enjoy under the present system: but he did not consider the proposals to be of the essence of the scheme ; Lord Cairns approved of the greater part of the recommendations as to changes in the present County Court system; Lord Penzance agreed that a fresh distribution of County Court circuits was desirable and that the ministerial work could be discharged under an entirely new system at very far less than the present expenditure [see ante, p. 138]. The great field for legal economy is to be found in the Superior Courts. Mr Justice Blackburn objects to Courts of an intermediate character between Small Debts Courts and the Superior Courts, and doubts the expediency of such intermediate Courts. He attaches “much importance to the keeping up of the great central bar of England.” Why should suitors needlessly subsidise the bar? The Right Hon. Mr Collier “thinks the jurisdiction of the County Courts has been extended somewhat too far, and that it deserves consideration, whether, under an improved circuit system, some portion of that jurisdiction might not be conveniently re-transferred to the Superior Courts.” Chief Justice Coleridge, “speaking generally, agrees in the views expressed by Sir Robert Collier.” Courts of Civil Jurisdiction exist for protection of suitors and the defence of public interests. Has there been any expression of public opinion adverse to the County Courts, or which in the slightest degree sustains the opinions of the Judicature Commis- sioners hostile to the continuance of the present system The present system of County Courts ought to be preserved and their jurisdiction should be extended. The system is effective; it has been perfectly successful ; the public are satisfied with it. The writer repeats what he said on a former occasion : “ Keep the door of the temple open; watch the cleanliness of the altar and the multitude will feel secure in knowing that there is a place of refuge and protection for them in the sanctuary from which no charges or professional imposition can drive them. Let the Judges of the Courts be subjected to any degree of responsibility ; let all they do be freely canvassed ; let any amount of watchfulness of their acts exist; and let the belief always prevail that improvements in the County Court system are required and let no year pass without endeavours to improve it and to give contentment to suitors.” 172 On County Courts. NOTE. These pages have been written and printed without consultation with any persor. The personal knowledge of the writer on the practice of the County Courts is chiefly confined to the Courts on Circuits 30 and 24. ERRATA. Page 26, line 14, read ‘‘It was not the superiority of Courts but costs which were sought after.” >, 17, ,, 16, for ‘Mr Fairfield” read ‘‘ Mr Farnfield.” >, 76, ,, 9 from the bottom, for ‘‘ Lord Mayor’s Court” read ‘‘ City of London Court.” >, 89, ,, 6, for ‘*debtors” read ‘‘ creditors.” », 101, ,, 22, for ‘‘as” read ‘‘ tea.” >, 138, ,, 44, for ‘‘60” read ‘‘81.” » 142, ,, 40, for ‘*2” read **72.” “Can either Pope or King privilege aman from paying debts that is able to pay them? Several of the clergy present agreed that by the laws of God and the Church, a sanctuary man may be delivered up to pay his debts or restore stolen goods, his liberty being allowed him to get his living by his labour.” [Str Thomas More's Life of Edward V. and Richard II., p. 210, Ed. 1870.] APPENDIX. No. I. AN ILLUSTRATION OF THE COMMON LAW RELATING TO IMPRISONMENT FOR DEBT. Among ‘‘Franchises,” which were certain privileges conferred by grant from the Crown, the right of a private person to have, as an inheritance, the custody of prisoners, was one so frequently mentioned in ancient law-books that it might have been expected many instances of it-might have remained to these days ; yet such a franchise seems either from the disuse or the destruction of franchise gaols to have become almost extinguished before such gaols were closed by the legislature in the year 1858. The Act of 19 Henry VII., ch. 10, which was an ‘‘ Act of Resumption of Liberties,” provided: That every Sheriff within every County within this realm of England shall have the custody, rule, keeping, and cha of every of the King’s common gaols, prisons, and prisoners during the time of his office—except all gaols whereof any person or persons spiritual or temporal, or any body cor- porate, have the keeping of estate of inheritance, or by succession, And it was further enacted, that all letters patent made to any person or persons for term of life, or lives, or for term of years, of the keeping of the said gaols, or of any Constableship of any Castle wherein any common gaol is, should thenceforth be repealed and annulled. : Franchise gaols, where the custody of prisoners was the inheritance of a private person, though spoken of by Lord Coke as belonging to ‘‘divers lords of liberties,” appear to have been reduced to few in number in the year 1858, if the Act then passed included, as it is believed it did, all such gaols. One of these gaols was that of Swansea, and it was in an old Norman castle belonging to the Duke of Beaufort. This castle formed part of one of those great seignories known by the name of ‘‘ Honors,” the ‘‘ Honor” there being that of “Gower.” [See Tomlin’s Law Dictionary, title ‘‘Honor.”] It was included in the possessions of Elizabeth Herbert, the heiress of William Herbert, Earl Pembroke—created Earl of Huntingdon, 4th July, 1479—who married Sir Charles Somerset, K.G. [a natural son of Henry Beaufort, Duke of Somerset, K.G.], who was created Earl of Worcester in 1514, and was Cham- berlain to Henry VIII. [Calendar of State Papers, Henry VIII., Vol. 1, No. 5,180.] The ‘‘jura regalia” of this Honor are said to be very important. The following was the Report made in 1853 by Mr Perry, Inspector of Prisons : “Tt has been my duty in every annual and special report relating to this prison to call attention to the scandalous neglect exhibited in its management, 174 Appendix. which may safely be said to be without parallel in any establishment of the same kind in England. The prison consists of the ruined keep of the Castle of Swansea, divided into four rooms, varying from twelve to fifteen feet square. These rooms—of which one only [designed for women] possesses a lock— consist of mere walls—no furniture whatever being allowed. to the prisoners. They are very cold in the winter, but no fuel is furnished for warming them, No food is allowed, but the prisoner’s friends, if they have any, are permitted to feed them. If, however, ee are not so fortunate, they must depend on the intercession of some person with the parish to procure for them a pittance for their maintenance. And their chance of medical assistance in sickness depends upon the same precarious assistance. There is not even any drop of water within their reach—the supply of this necessary of life being entirely dependent on the occasional visits of a gaoler residing in a distant part of the town. The remoteness of this person’s residence makes it, of course, impossible to summon him in case of any emergency. I have not been able to learn that any religious instructor has ever been seen within the prison.” “At the time of my last inspection, on the 22nd of March last [1853], there was one debtor in confinement who, being a tradesman in the town, was well supplied with bedding, fuel, and food. Being a bookbinder by trade, he had his presses and tools brought in, and two apprentices at the time of my visit were assisting him in his trade. One of these apprentices, being a boy of small size, was able to pass and repass through a hole in the wall—where there had formerly been a pump—for the purpose of procuring anything his master might require from the town, and he also slept in his master’s room at night. The ordinary privations suffered by other debtors could not be estimated from this example. The following list exhibits the number of debtors in confinement in the course of the year which expired ov the day of my visit: Name. Reception. . Discharge. Debt. E. P.... Feb. 19, 1852... .... | Feb. 21, 1852... ... | £27 15 0 D. O. July 1, 1852... ... | Aug. 18, 1852... 33.17 0 T. BR. ..{ duly 5, 1852... ... | Jan. 27, 1853... ... | 10813 6 W.E.... | July 22, 1852... ... | Oct. 15,1852... ... 40 0 0 W. iB. ... | Feb. 2, 1853... ... | Incustody ... ... 32 1 6 ‘‘This prison, as has already been stated in former reports, is the property of the Duke of Beaufort, who has the custody of all debtors, except those committed by the County Courts, by virtue of his Lordship of the Seignory of Gower and Kilvey. The charter under which this right is founded [?] bears. date in the fifth year of the reign of James I. [1607], and was confirmed by an Inspeximus in the thirty-third of Charles If. [1681].” “T feel that I should ill discharge my duty if I should hesitate to point out, on every possible occasion, the public inconvenience and private hardship inflicted by the continuance of this prison on its present footing. To deny to persons confined for debt—food, bedding, fuel, religious instruction, and medical attendance, and the help in case of need of a reponsible officer, when these advantages are so humanely provided for criminal offenders, implies an anomaly which cannot be too often noticed or too strongly insisted on.” On Wednesday, November 9, 1853, Mr L. Dillwyn, who was afterwards, elected M.P. for Swansea and the western boroughs of Glamorganshire, moved in the Town Council of Swansea this resolution: ‘‘That the Town Council of Swansea having seen the Report of the Inspector of Gaols on the state of the gaol of His Grace the Duke of Beaufort in this town, and being aware of the Appendix. 175 general correctness of that Report, beg respectfully to call the attention of His Grace to the same in the earnest hope that he will cause such steps to be taken as may appear to His Grace to be best calculated to remove what appears to this Body to be a stigma to the town of Swansea.” This resolution was carried, and one of the Council was cheered when he stated that he was authorised to say that arrangements were being made between His Grace the Duke of Beaufort and the Hons Office, the practical effect of which would be speedily and entirely to shut up the prison. There is, however, no allusion to any such arrangements in the letter of the Under- ‘Secretary of State of the Home Department, dated February 14, 1854, or in the letter of January 12, 1858, printed below. The Duke of Beaufort died 17th November, 1853, in the 62nd year of his age. A special meeting of the Town Council of Swansea was held on November 25, when a Committee was appointed to prepare a memorial of con- dolence tv his successor. On January 13, 1854, the Mayor of Swansea informed the Town Council that he had received a communication from the Duke of Beaufort, to the effect that nothing but the unconditiona] withdrawal of the Resolution passed by the Council relative to the gaol would be a sufficient apology for the insult to his late father. Thereupon it was moved, without comment, that all the cor- respondence with the Duke of Beaufort, the Corporation, and the agent of the Duke, should be entered on the Minute Book of the Corporation. This resolu- tion was carried. [See the Cambrian newspaper, January 20, 1854.] The important act of the Council was its confirmation of the report of Mr Perry, but the Council ought to have asked Mr Vivian, then M.P. for Swansea, to have introduced a Bill into the House of Commons to abolish the gaol. However, it seemed to be assumed that the arrangement, if there were such, which had been alluded to on the 9th of November would be completed. The year 1854, nevertheless, ended without anything being done, and so also did the years 1855, 1856, and 1857. Though the magistrates of the county, on their way to Quarter Sessions at Swansea, passed the gaol, it was apparently an object of indifference to them. In January, 1858 [see the Cambrian, January 8, 1858], the subject passed into other hands. The case of Evan Davies, who had been confined in the Castle Gaol, came before Mr Commissioner Hill, in the Bankruptcy Court at. Bristol, This bankrupt had been in gaol for five or six weeks, and he detailed the particulars of the management of the gaol: that no food was allowed to him by the gaoler, want of water, no prison allowance, and no straw supplied to prisoners, A witness also related that he had visited the gaol in order to pre- pare a schedule of insolvency for a woman who had been confined there [and who remained there nearly twelve months], and that when he was there two debtors were in confinement, one man and one woman, and he gave details of the neglect of the prisoners. : Mr Commissioner Hill commented upon what he had heard, and said he hoped something would be done ‘‘to protect the character of the cduntry for Christian charity, in order to prevent the possibility of such enormities again occurring as those which, with the utmost pain and with a deep feeling of humiliation, he had heard detailed that day.” . Mr Commissioner Hill subsequently corresponded with the Duke of Beaufort, whose letter to him in reply is printed below, and with Mr Michaek then Mayor of Swansea. On a future occasion [see the Cambrian, January 25, 1858] Mr Hill entered very fully into particulars of his correspondence, and: ended by saying: ‘‘ The only consolation I have is that the occupation of the public time, which I have thought it my duty to make, may have some effect. in producing a change and in obtaining that object which the Mayor of Swansea 176 Appendix. [Mr Michael] says is so desirable, and which, I think, we shall all agree in saying cannot come too soon.” In the same month, on the 22nd day of January, 1858, the case of Williams, an insolvent, came before the County Court of Swansea. Mr Simons supported the insolvent, whose debts amounted to £2,758. 11s. 5d. In the course of his examination the insolvent said, among other things, that he had been confined in Swansea gaol ten weeks. Part of the time he was there alone, He had no fire ; there was no means to communicate with the gaoler at night; there was no provision made to supply with water persons confined in prison, and there was no water on the premises even forthe gaoler; and that the gaol was detached from the part of the building where the gaoler resided. When he came to the prison there was no bed for him to lie on. Subsequently, a man named John Matthews was brought to the gaol who had no bed to he on for three nights. The first night he had to sleep on the stone floor, &c. His Honour (Judge Falconer] read the following letters, sent to Mr Hill by the Duke of Beaufort: ; ‘‘Badminton, January 12th, 1858. ‘Srr,—I have the honour to acknowledge the receipt of your letter, and to thank you for it and the accompanying Bristol paper. I enclose you a copy of a letter from the Under Secretary of State, written by desire of Lord Palmerston when he was Home Secretary in 1854, to my solicitors. The inquiries alluded to were made in consequence of Mr Perry’s report. I was, at that time, informed that there was a somewhat similar case at Winchester [1 think it was], the Sovereign having to find a place to detain debtors in, but having nothin, to do with thee maintenance, and that Her Majesty might as justly be accuse of starving the debtors of the county of Southampton, having neglected to feed them. I also inclose you copies of a letter of my agent at Swansea, show- ing what has been expended since 1852, in repairing those three rooms, and one from the Bailiff of the Liberty of Gower. I think these documents will satis- factorily prove that the statements made to you were, to say the least of them, exaggerated. “Again thanking you, “‘T have the honour to remain, your obedient servant, ‘ BEAUFORT. “To Mr Commissioner Hill.” ‘‘Whitehall, February 14th, 1854, ‘‘ GENTLEMEN, —Adverting to your letters of the 2nd and 13th of December last and 4th ult., respecting the Debtors’ Gaol of Swansea, I am now directed by Lord Palmerston to acquaint you that, having fully inquired into and con- sidered your statements, his Lordship is of opinion that the Duke of Beaufort is not, in any way, chargeable by law with the maintenance of the prisoners committed to that gaol, and that there is no reason to believe that His Grace has failed in the fulfilment of any duty in connection with the prison for which he may be legally responsible. “T am, Gentlemen, your obedient servant, “HH. WapDDINGTON.” His Honour then went on to say: ‘‘The time has come when it is necessary the Legislature should sweep away the Debtors’ Gaol at Swansea. I will not condescend to argue whether or not there is in any part of England a Royal Gaol similar to this one, or whether or not the owner or keeper of such gaol is bound to maintain the prisoners committed to the custody of the gaoler. It is sufficient that this is a gaol owned as a personal and private right. No such gaol ought to exist in this kingdom. If it were managed in the best manner it would be sufficient to say that such a gaol ought not to exist. The keeper of Appendix. 177 it, or, in courtesy, the owner, may, in case of insolvency, cause it to be trans- ferred to assignees, or it may be sold by auction with the prisoners in it, or it may be conveyed under a settlement on the marriage of a son or daughter of the owner. It is a purely private right, and the time has long since passed away when any such right should continue. The custody of prisoners is not a desirable privilege to possess, and I should have thought the owner of such an inheritance would have been among the very first persons who would have contributed assistance towards its abolition. _ ‘It matters not if there be a Royal Prison at Winchester similar to this one in Swansea. If there be, it ought also to be abolished. At all events the Ministers of the Crown are publicly responsible for the management of such a prison. ““We have here to deal simply with a prison in the hands of a private per- son ; with the custody of prisoners possessed as a franchise in connection with the ownership of private property. It is one of the most offensive relics of an ancient system. If a creditor obtains judgment against a debtor living within a certain district, a claim may be enforced which may throw the debtor com- mitted under the judgment of one of the Superior Courts of Law into the custody of the owner of a private castle. It may be that in past times the possessors of some other castles had similar authority, and if so, we may commend the memory of those who, in the exercise of a great power, dis- mantled such places, though it is only necessary to atteud the Quarter Sessions or Assizes of this county when the names of bailiffs of uninhabited places are called over, which clearly tell of other privileges which ought to be abolished and which are still nestled in old ruins. Unfortunately, the castle of Swansea was not overwhelmed in the general destruction of Welsh castles. And what do we find in this age of civilisation, of mercy, and of charity,—in this happy age when the gentlest spirits are all-powerful in the performance of every duty of humanity? In this gaol the keeper is only bound to keep the inmates in custody. Do you ask who maintain the prisoners? They who keep the prisoners in gaol are under no legal obligation to find them water, or food, or fire, or clothing, or bed, or table, or seats’; and they supply neither water, nor food, nor fire, nor bed, nor seat; and the attendance of a minister of any religious denomination is not provided for. *¢ Is there any person who hears me te whom if this power were offered to his acceptance would not reject it and who would not regard even the enforced possession of it with horror? : “There is no legal provision for the maintenance of the prisoners, The gaoler may be kind and humane, but the system is one of cruelty. How is the prisoner to be supported? A charitable hand may be extended to give comfort and aid, but ought the maintenance of prisoners to depend on mere accidental acts of charity? “It is not necessary to ask a Secretary of State what are the limits of legal obligation on the owner of the gaol beyond the mere custody of the prisoner. Is it any satisfaction to ascertain that all they comprise is, the mere contine- ment of the debtor ? ‘‘ When this prisoner before me is discharged another remains in this gaol who is unable to speak English, and he will remain in solitary imprisonment. He may remain here for a month or for a year, or, if not discharged under the Insolvent Debtors Act, for life. The chips of wood of the carpenter which enabled him to gain warmth this morning will not remain to kindle a fire for him, or to protect him from the chill of the stone-bound floor and walls which will immure him during hours of darkness in cold and loneliness. “©The insolvent now before the Court, through the honourable and chari- table intervention of Mr Wilson, was permitted to carry on in gaol the business Z 178 Appendix. of a carpenter. To the prisoner this must have been a source of infinite relief and comfort, but there was a sight before me when I visited the prison enough to damp the spirits of any man. In the inner room, before a fire made of chips of wood collected from the father’s work, were two almost naked little children warming themselves and smiling in indifference to their sad position. They were permitted in the day to join their father. The fire before which they crouched was an accidental source of pleasure which they obtained through their father’s work. No obligation connected with their father’s imprisonment gave it to them, and any such obligation is disavowed. ‘‘Again: Under the Insolvent Debtors Act I possess the power in certain cases to remand a prisoner to gaol for a period of three years. I have never exercised this power to any such extent anywhere, but even if exercised to a moderate extent, it ought to be under the supervision of persons of station and authority. In all that I do I ought to feel a stringent responsibility. In con- nection with this gaol there is no active interference of any such authority. ‘* What is my own position, then, when I decide that an insolvent debtor ought not to be at once set free on account of some misconduct, and when it is to this gaol only that I must make a remand if he is remanded to confinement ? Is it right I should be called on to remand a prisoner to this gaol? ‘« The inhabitants of Swansea ought to know this: that it is only through their assent that this Castle Gaol can continue. No such institution as this one can exist among them unless they chose to permit it, or remain silent. They have ample power to make their opinion known through their Town Council, and more especially in the House of Commons. That they would willingly free the town from the reproach of such an institution cannot be doubted, for there is no place in Wales where institutions of charity or of public usefulness are more nobly aided or supported than in this town—and there is no town in Wales where the population are so intelligent and well- informed as in Swansea, or, I feel assured, more humane.” The particulars of the above case and the remarks made by the Judge of the County Court were sent by him to the Right Hon. Sir G. Grey, Secretary of State for the Home Department, with a note urging official interference. Mr Perry and Mr Commissioner Hill had been the first to call the attention of the authorities at the Home Office to the state of things complained of. Shortly afterwards a Bill was introduced into the House of Commons, and on the 14th June, 1858, the Act [21 Vict., ch. 22] to abolish these Franchise Prisons received the Royal Assent. The prisons abolished were: 1. Swansea Debtors’ Prison for the Liberty of Gower. 2. Newark Liberty Prisons for Debtors. 8. Halifax Home Gaol for the Manor of Wakefield. 4, Gaol for the Forest and Forest Liberty of Knaresborough, belonging to the Duchy of Lancaster. 5. Gaol for the Borough and Township of Knaresborough, belonging to the Duchy of Lancaster. 6. Sheffield Debtors’ Gaol, for the Liberty of Hallamshire, 7. Hexham Debtors’ Prison. It will thus be seen how erroneous were the opinions of the Select Com- mittee of the House of Commons, 1873, on the Common Law relating to Imprisonment for Debt, and how barbarous and cruel that law was towards debtors even in the year 1858. Appendix. 179 No. II. THE TREASURY MINUTE. In June, 1873, the Lords of tbe Treasury directed letters to be sent to County Court Judges, stating, among other things, that ‘‘ the Judge shall live at or in the immediate neighbourhood of the town in which his Court is held at which he would have to sit most frequently, and that he should go and return home from those Courts which are within an easy distance, either by rail or road, of such town.” They suggested the following arrangement of Circuit 30, to which assent was expected. ‘he Judge was to reside within the Swansea district. " Part of the comment sent in reply is in brackets. Frrst WEEK. - Monday.— “‘ From Swansea to Aberdare [80 miles], hold Court and sleep there. : [This would require me to leave Swansea at 8 o'clock a.m. ; then reach Aberdare 9.25; get breakfast if the train is not late and be in Court at 10 o’clock. Disputed cases without advocates and judgment summonses will occupy the early part of the day. No limit of time to the sitting. ] Tuesday.—‘‘ Aberdare to Merthyr, hold Court and sleep there.” [Long sitting certain. ] Wednesday.—‘‘ Merthyr to Brecon, hold Court and return to Merthyr.” [That is, to leave Merthyr at 9.30, reach Brecon, 23} miles, at 10.55, or 11 o’clock. If the work is not over at 4.40, Merthyr cannot be reached that night. Total travelling expected on this day, 47 miles.] Thursday.—Merthyr to Pontypridd, hold Court and sleep there” [114 miles]. Friday.—‘‘ To Cowbridge, or in alternate months Bridgend.” [Pontypridd to Bridgend 33 miles ; Bridgend to Swansea 26 miles.] Saturday.—‘‘ Cowbridge to Swansea.”’ [40 miles. Inthe winter months I cannot be expected to leave Cowbridge at 7.25—and if I do not, I cannot get to Swansea until 3.45. This sixth day is not counted in the Treasury Minute, but there must be five days’ absence from home this week.] Seconp WEEE. Monday.—‘‘ Swansea to Aberdare, hold Court and sleep.” [26 miles.] Tuesday. —‘‘ Aberdare to Merthyr, hold Court and sleep.” [8 miles.] Wednesday.—‘‘ Merthyr to Pontypridd, hold Court and sleep.” [11 miles ; put hitherto I have preferred to sleep at Cardiff. ] Thursday.—‘‘ Pontypridd to Swansea.” [59 miles. I might manage to reach the Swansea station about 1o’clock. At the end of this week I shall have slept eight days in the month from Swansea. On Friday a Court might be held at Swansea. } THIRD WEEK. Monday.—‘‘ Swansea to Aberdare, hold Court and sleep.” [26 miles.] Tuesday.—‘‘ Aberdare to Merthyr, hold Court and sleep.” [10 miles.] 180 Appendix. Wednesday.—‘‘ Merthyr to Swansea.” [85 miles, At 8.25 I may leave Merthyr, which, in the winter months, means rising in the dark. If I leave at 10 o’clock by the next train, I cannot get to Swansea station until 11.48, which may be past 12 o’clock. This day is not counted, nor is the time occupied in travelling mentioned in Parliamentary Returns. This third week makes up twelve does from Swansea. On Thursday and Friday Courts might be held at Swansea, aud four days’ sittings in amonth are usually required at Swansea. ] Fourtu WEEK. Monday.--‘‘ Swansea to Merthyr, hold Court and sleep.” [35 miles.] Tuesday.—‘‘ Merthyr to Swansea.” [35 miles; and this day also is net counted, making four return days not counted ] [Fifteen days in the month, exclusive of Swansea sittings and of Sundays, will be thus occupied. Swansea is left for Thursday and Friday in the third week, and for Wednesday, Thursday, and Friday in the fourth week, making a total of twenty days, with travelling on fifteen days, and thus filling up four weeks in the month. The total travelling in the year is put down at 3,519 miles. The travelling is added to the Court work as though it was nothing, and the personal attendance allowed in estimating expenses were cab fares !] This document is remarkably illustrative of the economical genius of the Lords of the Treasury and of their secretaries. Under the ‘‘ improved Circuit system’’ suggested by the Judicature Commissioners, it may become a model. The Metropolitan Courts may, until the law is really reformed, afford easy work to the Judges, but on the Country Circuits the case is very different ; though it is right that Judges whose Courts are held far from London should not reside in London. The Treasury actually expected a Court to be held, with travelling twice a-day. Did they really believe a Judge has no Court work to do out of Court? The writer informed My Lords that the following account of his work in the month preceding the receipt of their proposal to amend the arrangements on Circuit 30 was taken from his Diary : May. Monday, 6.—Usk to Swansea, 34 miles, and sat shortly after 11 o’clock until past 6, hearing judgment summonses and short disputed cases in which no advocates were employed. ‘ Tuesday, 7.—Disputed cases in which advocates were employed, heard until past 7 o’clock p.m. Court sat at 10 o’clock a.m. Wednesday, 8.—Ditto. Sat from 10 a.m. until past 8 o’clock p.m. Thursday, 9.—Ditto. Sat from 10am, to10 p.m. The last case was in Admiralty and lasted five hours. The ship had been arrested, and it was im- portant the hearing should not be delayed. In Court twelve hours. Friday, 10.—Left Swansea at 15 minntes past 6 a.m.; arrived at Bridgend Station, 32 miles, before 9 a.m., then posted to Cowbridge, and sat late. Slept at Cowbridge. There was an ejectment case on title, of much importance, heard by consent. Saturday, 11.—At the Cowbridge railway station at 7.10 a.m. Train late, and thus it missed the train from Llantrissant station to Newport. Remained at Llantrissant station for four hours and a half. A wet, raw day, and did not reach Usk until late in the afternoon, 42 miles. Monday, 13.—Usk to Aberdare, 28 miles. Bankruptcy case; counsel employed, one of whom came specially from London ; subject matter involved above £2,100. Appendix. 181 Tuesday, 14.—Heard judgment summonses and cases disputed in which no counsel employed. After Court drove out of town, attended by attorneys on both sides, in order to view premises claimed in an equity suit. Wednesday, 15.—Heard defended cases with advocates. Thursday, 16. —Sat at Pontypridd. No second day necessary, though appointed. Slept at Cardiff. Friday, 17.—Went to Swansea in order to hear an Admiralty cause on the next day ; 46 miles. Saturday, 18.—Swansea. Heard an Admiralty case and other minor matters. Left Swansea late and got home laté, posting from Newport to Usk. Swansea to Usk, 65 miles. Monday, 20.—Usk to Merthyr, 283} miles. Heard disputed cases sent from the Registrar’s list, in which there were no advocates. Sat until past 7 o’clock p.m. hearing an important equity case, which was adjourned until Wednesday. Tuesday, 21.—Disposed of a long list of judgment summonses and some small cases. Sat from 10 to past 7 o’clock. Wednesday, 22.—Equity case continued and judgment given. Some minor matters disposed of. Left for Brecon at 6.53 p.m., 234 miles. Arrived at Brecon 8.15. Brecon, Thursday, 23.—Sat from 10 until past 8 o’clock. Heard, with a jury, a horse case. Eighteen witnesses and long speeches. Slept at Brecon. Friday, 24.—To Merthyr, fourth day. Heard a case sent from the Court of Queen’s Bench, which lasted until a late hour. Slept at Merthyr. Saturday, 25.—To Usk. There was no adjournment of the Courts from 10 a.m. to the hour at which the business of the day finished. The Select Committee on Civil Estimates consider that there may be a large reduction in the present number of the Judges. [Ante, pp. 136, 154.] It must not be inferred that in every month there is so much work as in May, 1872, but in some months the work is even more laborious than that related above. In 1857 the writer sat in Court 241 days, and in the next year he sat a greater number of days, but long sittings, travelling, changes of dwelling, ill- ventilated Courts, &c., began to tell unfavourably on him. Until 1859 the dis- tricts of Crickhowell, Hay, Builth, Rhayader, Neath and Cardiff were parts of Circuit 30. These districts were then attached to other districts, and there were two new districts formed in Glamorganshire, and necessarily, namely, Pontypridd and Aberdare. When Crickhowell was part of the Circuit it was easily reached from where the writer established his home, and from whence the Lords of the Treasury desired to remove him after about eighteen years’ residence. The writer was appointed in December, 1851, and went his first Circuit in the following month. In the twenty-two years since that time he missed two days at Neath in June, 1858, on account of some bronchial affection ; one day out of four at Merthyr, when the snow between Brecon and that town blocked up the road, and he missed reaching Builth and Rhayader, in the same month, on the same account. In 1872, for nearly six weeks, he had ‘‘double vision,” and had to suspend work. With these exceptions he has held every Court which has been held on Circuit 30, from January, 1852, to February, 1874, that is, 260 Circuits. Since 1867 there has been, under the Act passed in that year, an annual vacation month. ee The amount of money sued for on Circuit 30 from January, 1852, to January, 1874, both inclusive, under the ordinary jurisdiction of the Court, - was £1,001,863, or above one million. 182 Appendix. The number of plaints within the ordinary jurisdiction of the Court, and the amount of money sued for on the County Court Circuit (30) of Breconshire and Glamorganshire, in the last 21 years, have been : Plaints. Juries. Sued for. cau bore 1849 5,452 iss £17,425 None. 1852 9,796 15 31,273 208 1853 9,889 15 29,579 171 1854 12,187 9 36,299 238 1855 13,277 8 36,956 249 1856 17,608 16 46,164 205 1857 23,609 21 67,543 466 1858 29,718 23 69,079 417 1859 16,846 20 38,897 256 1860 20,719 19 49,481 289 1861 20,557 19 52,377 317 1862 18,600 16 43,071 233 1863 15,803 7 36,242 170 1864 13,728 5 32,918 196 1865 16,060 11 35,097 137 1866 20,472 3 45,128 204 1867 23,782 12 53,133 219 1868 22, 489 13 53,857 252 1869 21,335 11 53,450 238 1870 18,528 7 48,956 286 1871 16,982 6 46,918 279 1872 17,957 9 50,089 304 21 years. 379,942 205 | £956,437 5,427 The returns for 1873 are: plaints, 14,838: juries, 25; sued for, £45,931; and causes above £20, 277. The great strikes in Glamorganshire in 1873 greatly interfered with the commercial interests of the county. Insolvency, Bankruptcy, Equity, and Admiralty work is excluded. ‘‘Unfortunately since the death of Lord Brougham the interests of the public in the County Courts have not been protected in Parliament. Even on the Judicature Commission these Courts have not been properly represented. Some one at least of the most experienced Judges who had long done Circuit work beyond the limits of London should have been named on that Commis- sion, As Judges the Legislature has excluded us from the bar, and most properly, but we have been left without the authority of a legally recognised position, and their Lordships would place us on the level of Commercial Travellers. Our modern Official Reformers, also, in the suggestion of changes, can do nothing more than propose measures which shall enable lawyers to repossess themselves of the old sources of plunder from which these Courts have excluded them and to close that open access to these Courts which has been an abomination to pleaders and an offence to needy practitioners.” The very unjust and harsh suggestions of the Treasury Minute were con- demned and the Minute itself was withdrawn through the vote of the House of Commons, on the motion of Mr Attorney-General James. They afforded, Appendix. 183 however, another illustration of official hostility to the County Courts and of the disregard of ordinary consideration of the long, unwearied, and laborious services of at least some of the Judges. The reader must not forget that the Select Committee on Civil Services assert that the Judicature Commissioners have declared that the present number of County Court Judges might be largely reduced, and under the Borough Courts of Record Act of 1872 there has been provided an increased force of Judges out of some hundred Recorders. [Ante, pp. 36, 37.] No. III. SWANSEA ADMIRALTY COURT. Ress v. THomas.—This cause, referred to in a previous page [159], was heard on the Admiralty side of the County Court at Swansea in preference to proceeding in a Superior Court of Common Law. Mr W. Bowen Rowlands [counsel] for plaintiff, and Mr E. Strick [solicitor] for the defendant. His Honour Judge Falconer : In this case a charter party was made between David Rees, the owner of the vessel the ‘‘ Village Belle,” of 320 tons, and W. H. Thomas as agent for merchants. The vessel was to proceed to Bilbao, and to load in customary manner from the agent of the freighter a complete cargo of iron ore, in bulk, to be brought alongside at merchant’s expense, and, being loaded, to proceed to Llanelly, with an option of one out of three voyages to Swansea. There were to be eight working days allowed to load at Bilbao, and to be discharged in regular turn and in the customary manner, with all such despatch as the usage of the port will permit; ‘all accidents or causes occur- ring beyond the control of the shippers or affreighters which might prevent or delay her loading or discharging, including civil commotions, strikes of any pitmen or workmen, riots, frosts, floods, stoppage of trains, accidents to machinery, &c., always excepted. Demurrage, 4d. register ton per day.” The charter being concluded on the behalf of others, it was agreed that all liability of agents signing, in every respect and as to all matters and things as well before as after the shipping of the said cargo, shall cease so soon as the cargo is shipped. The charter was to remain in force for three consecutive voyages. The defendant having an interest in the cargo, the effect of the agency clauses was not discussed. Mr David Rees, the plaintiff, and shipowner of the ‘‘ Village Belle,” claimed the stipulated demurrage of 4d. per ton on 199 register tons, for thirty-nine days, which amounts to £129 7s. * : After reading the whole evidence, his Honour continued: Mr Strick stated that his client [the defendant] could not have chartered the vessel unless he had protected himself from the probable effect of civil commotions in Spain. Of the necessity of such a course there can be doubt. In countries where educated men influence the multitude, and society is protected by legal equality—the only equality which in this world can be perpetuated or even exist—there is necessarily continued security. Contracts can be made and entered into in such countries without reference to any expectation of a dis- turbance of the ordinary business of life. In Spain, however, revolution succeeds revolution ; general after general, ecclesiastic after ecclesiastic, stimu- late to frequent civil strife the desperate and fierce passions of an ignorant 184 Appendix, population. Against the effects of such events even private contracts require the protection of exceptional conditions. But in the expression of the terms of exceptional conditions, such as ‘‘civil commotions,” charter parties are de- fective in not declaring what shall be received as sufficient evidence of the facts connected with such conditions. "What, for example, shall be sufficient evidence of a ‘‘civil commotion?’ A claim for demurrage may relate to £50 or £100, and the claim, if contested, though perfectly just, may involve the expenditure of a very large sum of money to sustain it and an equally large expenditure to oppose it if it be unjust. A ‘civil commotion” means much more than a local riot. It means attacks by force on the authority of the Government through measures which disturb the ordinary trade or business of a locality or a district. The occurrence of such an event, from its publicity and importance, it may have been assumed, would not be disputed. But when it is disputed, see what expense may be incurred! Witnesses must be brought from a great distance, and as the knowledge of each witness can extend only over a limited space of ground, many witnesses must be summoned. At one end of a disturbed district all may appear to be peace: at another place there may appear the activity of business and yet what is seen may be only hasty efforts to preserve what may be threatened with destruction ; and in another locality the beasts of burden’ which may usually be employed to supply a port or city with its common articles of trade may be driven off. The bolt of war may fall on one place, and the effect of its explosion may shake a great district. One witness might relate little, and several might appear to contra- dict each other when even no real ground of disagreement existed. In the case of the ‘‘San Ransom,” 28 L.T.R., 381 [1873], P.C., where a ship had been delayed by its captain at Valparaiso, under the apprehension of being captured, the evidence seems to have included reports respecting the move- ments of a vessel of war and newspaper reports, which might have Ten correct or incorrect, and the advice of a consul not to sail. The evidence of the most justly apprehended danger must oftentimes be imperfect; but surely there would be no difficulty to provide in charter parties that those who are the parties to them shall be bound by local official statements of fact relating to causes of delay, matters of regular turn in loading, the amount of cargo, or such other facts as are connected with what are usually called ‘‘ exceptional clauses.” This could be especially done when the evidence relates to events of a public character. Commissions to examine witnesses abroad are the source of a great money outlay and the testimony of witnesses brought from abroad is frequently enormously expensive. It is thus that the great difficulty in this case arises—What is suffivient evidence of ‘civil com- motions” disturbing the trade of a port? The plaintiff, through his agents, may know what occurred. He should, as a just man, disclose it. He may be ignorant and then itis the duty of the defendant to excuse the non-performance of his contract. The seamen on board the ‘“ Village Belle” can tell us little. Their knowledge is limited to the business of their own vessel, and to what they can imperfectly observe from its deck. Neither the master, mate, nor seamen could relate what is passing on the not distant mountains, which may interfere with the trade they are engaged in. They may know nothing of the injury done to the railway leading to Miranda, though they may have heard where were the chief quarters of the Carlists. John Jones, the mate of the ‘* Village Belle,” says, ‘‘ There were 400 or 500 vessels at Bilbao ; there were lots arrived after us.” ‘‘ Did they get away before you?”—‘‘ Yes—one; she loaded before us.” Surely such an accumulation of ships at the end of February and in March, and down to near the end of April, is strong evidence of great dis- turbance of trade, caused by those political events referred to by the witnesses. The ship ‘‘ Daniel” was at Bilbao in February, but the master was not able to Appendix. 185 get away till April—though it was early in April. The payment to him of demurrage is of no importance as his delay might not have been excused by an exception contained in his charter party. The ship ‘‘ Campanile” which left the port was a steamer, and it is admitted that a preference is given to the loading of steamers ; perhaps even’ ‘regular turn” might permit such a pre- ference. The evidence of Mr Warburton and of Vice-Consul Tutor proves a state of commotion and disturbance extending from February to A pril—that is, to the time of the departure of the ‘‘ Village Belle.” How, in such a state of affairs, could there be order or regularity in the transaction of business? Some merchants of San Nicholas, or persons having private wharves, or who were placed in favourable positions on the river, between the first loading-place on the river Nervion to Bilbao, may have loaded vessels, and yet the general trade of the port may at the same time have been suspended, ‘‘All accidents and causes occurring beyond the control of the affreighters preventing or delaying loading” are specified in the exceptional clause as well as ‘‘ civil commotions.” Is there not sufficient evidence of general commotion and disturbance of the trade delaying the loading of vessels? The case of Tendvilsden v. Hardcastle, heard by me at Cardiff so far back as the year 1857, has been cited. That case, in its principle, has been sustained by several decisions of the Superior Courts. [Adams v. R. Mail 8. P. Comp., 28 L. J., 338; 5 C. B., 33; 32 L. T.R., 92; Kearon v. Pearson, 31 L. J., Ex. 1.] The charter party in the Cardiff case pro- vided that the freighters should not be held to be liable for any delay in loading caused. by frosts, floods, strikes of workmen, or accidents. I held that a strike at a particular colliery was no defence to the action, the general market for the purchase of coal not being affected by the strike. The strike at a particular pit did not prevent the obtaining of coal in the ordinary course of the coal trade, and now it is usual to meet such a case by a special provision in charter parties referring to the particular pit or pits from which it is intended to procure coal. If, however, vessels are laden in a port during the general disturbance of trade from some general cause, or during civil commotions, such cases of loading are exceptional. The excusing cause is to be a general disturbance in the business of the port, caused by civil strife. The inferences I draw are that there was a prevalent general cause of delay, arising from circumstances named. in the exceptional clause existing up to the time the ship was laden, as well as at the time of her arrival. There were clearly “‘ civil commotions” in those dis- tricts from which the customary supply of ore at the port of Bilbao came. The disturbances were not mere local riots which could be suppressed by the ordi- nary civil power of the town. This was shown by the preparations made for the defence of the town of Bilbao itself. Judgment for defendant. This cause was decided on December 2nd, 1873. It was heard, on appeal, by the Right Hon. Sir R. Phillimore in the first week in February, 1874, when the decision of the Swansea Court was reversed. The more important facts are the economy of the hearing in the County Court and the quick, final disposal of the case on appeal. . ; There is no second appeal in Admiralty cases, as in Bankruptcy. In Bank- ruptcy the appeal from the County Court is to the Chief Judge, and from the Chief Judge to the Lords Justices. The judgment reversing the above decision cannot be questioned. There was without doubt a paralysis of the trade in iron ore at Bilbao in February, March, and April, 1873. _ The following facts related in the Pall Mall Budget are interesting : Feb. 8, 1873.—Pall Mall Budget, p. 29.—‘‘ According to advices by way of Bayonne, communication between St Sebastian and the interior is cut off, and Bilbao can only be approached by the sea, An attack by the Carlists on the latter town was apprehended.” AA 186 Appendix. March 1, 1873.—Pall Mall Budyet, p. 29.—‘‘A telegram sent to the Paris Liberté from St Juan de Luz states, that a panic prevails in Bilbao and Pam- pluna which are daily expected to fall into the power of the Carlists.” April 19, 1873, —Pall Mall Budget, p. 29.—‘*The railway between Madrid and Bayonne cannot be used between Miranda and the frontier.” Miranda is direct south from Bilbao on the head- waters of the Ebro, Bilbao is in Bizcaya. Immediately east of Bizcaya is Navarra, and Estella, in Navarra, became the head-quarters of Don Carlos. The following are passages of a letter of Mr Gulick, dated Santander, Fed. 7, 1874, printed in the Times, Feb. 12, 1874, relating to the operations of the Carlists before Bilbao: ‘*The little town of Algorta is picturesquely situated on the bluffs to the east of Portugalete and the river Nervion, commanding a most charming view of the inner bay, the favourite bathing-place of El Arenal, the town of Portu- galete, and the village of Santurce, on the further shore, lying on the slopes of the green hills at the back of Portugalete.”—‘‘ Crossing to Portugalete, the sight isa truly sad one. Never were the marks of war more visible than on this little town. ‘Three-fourths of the fine row of fifteen or sixteen houses, among which was a really elegant hotel that lined the Muelle, the chicf street skirting the river, are literally torn to pieces—gutted—by the shot and shell poured upon them by the Carlists who occupied the opposite bank of the river, and from their batteries on the surrounding hills. Many other houses, though not so thoroughly demolished, are badly battered, large holes being knocked in their tile roofs, their miradors shattered and windows smashed, and great holes gaping in their walls. The dome of the church tower has served as a target for the Carlist batteries, which have knocked about half of it away, breaking the bell, crushing in a portion of the roof, and turning the interior into a heap of ruins— as the Carlist guard told us, who would not allow us to go into the church. A depressing nalless pervaded the place, and the forlorn aspect of the once busy town was only deepened by the appearance of the few persons straggling along the Muelle, of a solitary workman engaged in patching up a hole in the roof of a house through which a cannon-ball had crashed, and of a Carlist soldier pacing up and down in front of a ruined building.” ““We passed out of the town and pursued our way up the river to the great factory Del Carmen, at Baracaldo. This factory has had the misfortune to lie between the Carlists, who had placed a gun or two immediately behind it, and the Republican guns on Fort Desierto immediately in front of it. The result has been that for the Jast siz months all who have been engaged in or about these works have been exposed to continual and most serious danger, and during this time nine poor fellows have been killed while at their work by shot or shells from the Republican guns. In August last the family of the Director, a very intelligent and genial French gentleman, escaped for their lives, taking up their abode in France, while he returned to his post of danger. For these six months he has lived under the guns not only of the Republican batteries of Fort Desierto, but of the Republican gunboats which have lain almost constantly in the river in front of the factory, and which have every now and then indulged themselves in point blank shots at his house, which was only a few rods away from the muzzles of their guns. Though the French flag has not been removed during all this time from his balcony, overlooking the river, it has failed to protect him. ‘The front of the house is dotted with innumerable bullet marks, and all the front windows are pierced by bullets, which have crushed the glass and the wooden shutters, and have lodged in the parlour walls or traversed the central wall of the house and passed out of the back windows. Several vreat indentations have been made on the outside of the house by cannon-balls, and trees in the garden have been cut down by them. Appendix. 187 The balls are now lying on the grass-plots, where they tell their own story. Now that the whole territory is in the hands of the Carlist’, everything is quiet and all immediate danger is passed. But the stillness, the stagnation, the utter deadness that reign over the scene, are truly deplorable. The great factory is barely kept running, more, apparently, for the purpose of saving the machinery from deterioration than for the sake of its products. Not a boat lies in the river, where last summer, within a short distance of the factory, 200 steamers and sailing craft could be counted almost any day. Railways leading Jrom the mines to the river are cut, fine stone bridges are blown up, and the whole country is silent under its ruined industries and the rule of its military chiefs,” The unchecked and undisturbed continuance of the trade in iron-ore between Bilbao and England was of the most urgent importance to English iron works and iron factories. Te Es Usg, MonmoorHsHiRg, February 14, 1874. INDEX. ABOLITION of certain Courts of Re- cord, 33, 38, 39. Account stated, 15. Accountants, 53. Act of 1844 a failure, 93. Admiralty, the High Court of, 147. causes, 147. —— defects, 159. —— jurisdiction, 37, 56, 147, 158, registrar of, 147. Advocates, 77. Agency, London Offices, 138, 160. Appeals—notices, 128. case to be stated by parties, 80. (17 L.T.R., 125.] —— number of, 78. on facts, 84, Sir W. Harcourt on, 79. Appearances, 67, 137. —— costs of, 24, 59. — number of, 51, 89. Applications to Chambers, 121. Arbitrations, 125, 126. Arrangement of Court business, 69. Arrest in satisfaction of debts, 40. —— to compel payment, having means to pay, 96, 97. Attorneys, fees payable to, 50. —— advocates, 77. Baer, M., on taxation, 130. Bailiffs, their usefulness, 61, 63, 121. — cost of, 136, 138. Banking system, 86. Bankruptcy, 160, 163, 164. Barristers, 11. Bastards [fathers of], 119, 136. Bentham, 11, 41, 42, 67, 69, 145, 155, 157. Bills of Sale, 170. Borough Courts, 8. hot of 1872, 21, 34, 37. Brandon, Mr, his prophecy, 16. Bristol Tolzey Court, 26. Brougham, Lord, 17, 93, 100, 126. Caillard, Mr, J.C.C., 47. Campbell, Lord, 141. Central Courts, objected to, 47, 48, 49, 152. Chancellor, The Lord, put upon his defence, 144. Childers, Mr, his unjust remarks, 139, 140, 143. Civil Services Committee, 139. Collins, Mr, 75. Commitments, 89. Concentration of Courts, 48, 152. Consent causes, 123, 124, 126, 131. Contentious business, 72, 78, 99, 100. Coppock, Mr, on the Salford Court, 24. and costs, 59, 137. —— on appearances, 24, 59, 137. Costs, 26, 30, 33, 37, 52, 126, 137. in Borough Courts, 28, 30, 32. Council, Orders of [1873], 35. County Courts Act of 1846, 44. —— amount of money sued for, 44, 46. —— buildings, 68, 69. — business of, 43-46. contrast of business with that of the Superior Courts, 45. judges cannot practise as bar- risters, 145. _— jurisdiction of, 49, 50, 123, 124, 146. ‘ —— increase of, 164. —— plaints and particulars, 54, 55. — should be a national charge, 41. — the judges have no precedence, bar jealousy, 145. —— the system should be preserved, 168, 1g0 County Courts, their economy, 127, 130. —~— their expenses, 132. —— their influence, 157. —— two rooms necessary, 69. Courts, self-supporting, 37, 44, 133. —— Borough, costs, 30. of Requests, 39, 40, 100. —— Superior Courts commitments, 89 Cross, Mr, on Statute of Limitations, 115. Curiosities of speech, 116, 117, 119. Debts, payment of, 87. Default summonses, 76, 153. Defendants need not enter appear- ances, 67. Derby Borough Court, 30. Drapery sold by Scotch houses, 105. Equity jurisdiction, 170. amendment of, 150. — number of causes, 159. —— expenses, 160, Evidence, Acts on, 157. Executions against goods, 119—121. Exeter Provost Court, 30. Farmers resorting to County Courts, 9 Fees on entering plaints, 57. —— reduction of, 57. Gurdon, Mr, late J.C.C., on adminis- trations, 151, 170. Harcourt, Sir W., on appeals, 79. on County Court expenses, 131, 138, 143. —— his appalment, 137, 138. Hearings, 67, 69. Hollam, Mr, 8, 64. Horsnail v. Bruce, 97. Hundred. Courts, 7. —— [Act of 1867], 8. Husband, his power, 110. Imprisonment of Debtors: the present law, 95, 111, 112. -—— the ancient law, 90, 91, 173. —— [Act of 1844], 93. Committee, their Errors, 90, 96. Inflexible rules, 131. Instalments, 16, 19, 20, 21, 58, 8, Index. Itinerant registrars proposed, 74, 136. Jack-of-the-Law, 136. Job [of 1872], 37. [of 1868], 34, 38. Judges of County Courts dead since oe [fourteen, including Mr Raines], —— resigned [six], 4. — of Superior Courts, their hos- tility to County Courts, 17. orders by, on judgment sum- monses, 40, 89. Judgment summonses, 61. Judgments, 51, 89. of Superior Courts, 51. Judicature Bill [sec, 88], 37, 167. commissioners, their errors, 59. —— their proposals, 127, 152. Jurisdiction, pleas to, 15, 19, 153. Jurors, complaint of, 169. Kay, Mr, Q.C. and late candidate to represent Salford Borough [Salford Court], 18, 19. —— on appeals, 84. Kettle, Mr, J.C.C., 73. Senta Borough Court, 31, Lancaster Prothonotaries’ Act [1869], 25. Law jobs [Salford Act], 24. [Borough Courts Act, 1872], 37. Leader, Mr, late M.P., 5. Leeds Bankruptcy Court, 160. Liverpool Courts, too numerous, 129, registrars of, 129. Liverpool Passage Court, 24. decay of business, 26. Limitation, proposed Statute of, 115. Loan Societies, 21. London Court, City of, 16. Lord Mayor’s Court, London, 9. expenses, 10, 13. —— fees, 14. —— writs issued, 33. —— pleadings, 13. — number of actions, 14. — costs, 33. Manchester County Court, 22. Manor Courts, 7. Maule, Mr Justice, 17, 18. Means of a debtor to pay, 96, 97, 101. Lndex. Mendacity, 27, 162. Mercy, 21, 120. Middlesex, old County Court, 7. Newcastle Borough Court, 28, 29, Nottingham, 2+. Obstinacy, 98, 117. Offlow Court, 7. Ossulston Hundred Court, 7. Particulars, 11, 124. Patchett, Mr, of Nottingham, 47. Pensions, 39. Personal Service, 65. Peverel Court, 7. Phillimore, Sir Robert, 185. Picketting, 115. Plaints, 54, 55. entering of, 70. service of, 58, 60, 61, 63, 65. Pleadings, 55, 56. Pleas to jurisdiction dishonestly re- quired to be filed, 15, 19, 153. Poole Borough Court, 36, 37. Poor suitors to be cared for, 42, 72. Practice, rules of, should not be in- flexible, 128. Precedence, 145. Protection given to poor debtors, 21, Ant, Publicity, its excellence, 69. Purslow Court, 7. Recorders of Borough Courts [Act of 1872], 38, 39. —— [Judicature Act, 1873], 37. Registrars, their duties, 52, 53. —— their cost, 135. —— should not be itinerant, 75, 136. —— appointment of, 154, 170. at Liverpool, 129. Ae Report of Judicature Commissioners, 59. Request, Courts of, 39. —— their power to imprison, 39. abolition of, 39. St Leonards, Lord, 74. Salaries, 140, 142. Salford Hundred Court [Local Act of 1868], 18 Ig! Salford Hundred Court, Judges of, 19, 22, 23, should be abolished, 24, 84, 169. {Act of 1872], 21, 139. Scarborough Borough Court, 35. Scotch drapers, 102, 108, 105. Scotch Courts, expenses of, 71. limitation of costs, 50. Self-supporting Courts, 37, 44, 129, 133. Services of summonses, expenses, 66. personal service, 62. —— otherwise than by bailiffs, 65, 66. Sefton, Earl of, Stipendiary of the Salford Court, 19. Selborne, Lord Chancellor, reply to a Committee of the House of Com- mons, 144. Solicitors, advocates, 77. Striking out of causes, 69. Summonses, should not be served by suitors, 63. Superior Courts, ‘‘ one great good they do,” 127. expenses of, 83. circuit causes, 130. —— judgment summonses, 40, 89. contrast with the County Courts, 45. Swansea Gaol, Appendix, 173. Taxation of costs, 52, Taxes [M. Baer], 180. Torts, 11, 63, 146. Time, no inflexible rule for, 128. Tradesmen, their interests opposed to the professional interests watched over by the Judicature Commis- sioners, 87, 138. Transfer of Causes, 126, 130, 138, 167. Wakefield Borough Court, 32. West, Mr (late M.P.), Judge of the Salford Court, 18, 19, 139, 143. —— on appeals, 84. Wives, their dealings, 62, 107, 108. Scotch Law, 110. Working-classes, their clothing, 106. Writs, number of, 51, 89. expenses of service, 58, 59. York Borough Court, 35, 36.