7

several of the existing courts might properly be abolished, on account of the small amount of business transacted in them.

In order to dispose of the former subject, it will be necessary to determine on the proper course to be pursued in the latter.

No Suggestion made.]-As we have not yet been able to obtain all the information on these subjects which we think requisite, we propose to reserve them for future inquiry.

quired to enter on the minutes of the next succeeding court the cause of the judge's non-attendance. Not more than 150 Summonses ought to be made returnable on any one Day.]-We think it right to observe that our attention has been drawn to a prejudicial practice which exists in a few courts, of issuing a greater number of summonses returnable on one day than can be disposed of in a satisfactory manner in that period. In some instances more than 300 summonses have been made returnable on one day. This is obnumber of summonses returnable on any one day ought not to exceed 150. We also think that it would be a great relief to suitors if no greater number than fifty summonses were made returnable at any one hour. Clerk.

We think also, that when the judge is interested in the matter of the suit, it would be convenient to allow him to change the venue, in a similar manner, of his own accord, or at the instance of either party, or that the person having a claim on him should be enabled to sue in an adjoining district.

Qualification of Deputy Judge to be the same as that of Judge. With respect to the appointment of a deputy by a judge, the qualification required of the proposed deputy is not in all cases, as we have seen, (ante, p. 182), the same as that required for a judge.

We are of opinion that as the duties which the deputy, except in matters of charity, is called upon to perform are the same as those of the judge himself, and as he is invested with the same powers, and the same effect is attributed to his decisions, the same qualification ought to be requisite for a deputy judge as the law now requires for the judge himself.

In Case of Judge's Death, Deputy to continue to act until new Appointment.]-When a deputy has been duly appointed, it has occurred that the judge dies, and the deputy continues to act in ignorance of the death. By law the acts performed by him after the death of the judge are invalid, and in such cases great confusion has been and may be hereafter the result.

In order to obviate this inconvenience, we recommend that under such circumstances the acts of the deputy shall be valid, notwithstanding the death of the judge; and that in order to prevent the delay of the proceedings of the court, the deputy may continue to act until a successor to such judge shall be appointed, unless the Chancellor shall otherwise order; and that in respect of the period that he acts after the death of the judge, he should receive such remuneration as the Chancellor shall appoint, to be deducted from the salary of the

successor.

In Case of Judge's Death, Proceedings to continue from Court to Court.]-It has also occurred, in consequence of the death of a judge, that considerable delay, expense, and confusion have resulted to the parties litigant, as in such cases the proceedings are not continued to a subsequent court.

We recommend, therefore, that in such cases the proceedings should be continued to the next and any subsequent court, in the same manner as if they had been adjourned in the ordinary way, and that no additional fees should be paid in respect of such adjourn

ment.

The same where Judge unavoidably absent.]—Similar inconveniences result where a court is not held in consequence of the sudden illness of the judge, or of some accidental circumstance which prevents his attendance. To obviate the inconvenience thence resulting, we make a similar recommendation. In the latter case, however, we recommend that the clerk should be re

Secondly, with reference to the clerk.

Recommendations in the Case of Clerk's Death.]When a clerk dies or is removed, the power of his deputy or his assistant clerk ceases. Some time may elapse before a successor is appointed, but until then the business of the office is stopped, and great inconvenience accrues to the public.

To prevent this inconvenience, we recommend that, in either of the events stated, the deputy, or one of the assistant clerks, or a clerk temporarily appointed by the judge without the sanction of the Chancellor, should perform the duties of such deceased or removed clerk, until a successor is duly appointed.

We shall defer the consideration of the mode of remunerating the clerks until we have disposed of the question of fees.

Chief Clerk to be appointed to each District.]-In connexion with this part of our inquiries, it is proper to refer to an objection which has been made to the present system, which we have stated at p. 190, of one person holding the office of clerk in more than one disThe Legislature has, by the provisions of the 15 & 16 Vict. c. 54, s. 17, prohibited such a practice for the future, except under special circumstances. The information which we have been enabled to procure upon the subject shews the propriety of that provision.

trict.

We are, therefore, of opinion that arrangements should be made to secure to each court the exertions of a chief clerk. High Bailiff.

Secondly, with reference to the high bailiff.

Similar Recommendations in the Case of High Bailiff.] -Where the high bailiff dies or is removed, observations similar to those made in the case of the clerks are applicable.

In such cases we recommend that the duties of high bailiff be discharged by the assistant bailiffs already appointed, or by persons to be appointed by the judge or by the clerk, until a successor be duly appointed.

High Bailiffs not to serve Subpoenas.]-With respect to one portion of the duties now discharged by the high bailiff, that of serving subpoenas, we think that he should be relieved from the performance of that duty, and that the parties requiring the attendance of witnesses should be permitted to subpoena them. At present the number of subpoenas issued is comparatively very small, and therefore but little loss of fees would accrue in consequence of the alteration. Besides, the duty of making a tender of necessary expenses, and of fulfilling the other conditions necessary to compel attendance, would be more conveniently performed by the parties themselves. We think also that the subpœna should be issued gratis in blank. These recommendations would in many cases obviate the necessity of a second attendance at the office, as the subpoenas would then be taken out at the same time that the instructions for the plaint are given.

Bailiff to act beyond Limits of District in certain Cases without Leave of Judge.]-By the present law a high bailiff can only serve process within the district for which he is appointed, unless a special order of the judge be made for that purpose. This, in some instances, has been found productive of inconvenience, where the precise boundary with reference to the defendant's residence is doubtful. The same inconvenience arises in executing process against the goods or person. In the latter cases the party liable frequently removes his person or his property over the boundary, and thus sets the process of the court at defiance.

We think it desirable that the high bailiff of each district should be permitted, without leave of the judge, to serve or execute the process of the court, either upon or against the person or the goods of the party liable, within 500 yards of the boundary of such district, but without being entitled to any additional fee in respect of the greater distance travelled for the purpose of such service or execution.

We shall hereafter consider, in connexion with the question of fees, the mode in which the high bailiff

should be remunerated.

PROCEDURE.

We shall now consider the procedure in the county court. It appears to us that some alterations are necessary in order to render its proceedings more efficient. Witnesses.

Witnesses in Custody to be brought up on Judge's Order.]-We are of opinion that the judge of the county court should have power to issue an order commanding those who have the custody of prisoners required as witnesses, whether within his district or not, to bring them up before the court, on tender, to the person having the proposed witness in custody, of a proper sum to defray the expenses of the officer and prisoner going, remaining, and returning.

Amendment.

We think that the provisions of the Common-law Procedure Act, 1852, with respect to amendments, might with benefit be introduced into the county

court.

Judgment.

Effect of County Court Judgment not exceeding 201. in Amount.]-First, as to the effect to be given to a judgment of the county court. By law it is competent, where a judgment not exceeding 201. has been recovered, for the judgment creditor to seize all the personalty of the defendant, with certain exceptions, and by proceeding on a judgment summons the defendant may in certain cases be committed to prison for a period not exceeding forty days.

To have no greater Effect than at present.]-We do not propose that any greater effect than the law now permits should be given to a judgment for that amount. Land should not be extendible under it.]-It has been suggested that the high bailiff should have power to seize the land of the defendant under a warrant on such a judgment; but we are of opinion that it is not desirable that such a power should exist. First, it is not probable that a person who is unable to pay a sum not exceeding 201. should have any land which would be extendible under an elegit; and, secondly, if he have, the consequence would be that a charge would be created upon the land, and thus a very inconvenient clog upon the title would be the result. We do not, therefore, think it desirable to facilitate the creation of such a charge.

Effect of Judgment exceeding 201. should on certain Conditions be the same as that of Judgment of like Amount in Superior Courts.]—With relation, however, to judg

7

ments for sums exceeding 20., we think, first, that the power of the judge to direct payment by instalments without the consent of the plaintiff should cease; secondly, that upon a judge of a superior court at Westminster being satisfied that the judgment debtor has no personalty which can be taken to satisfy the judgment, the judgment creditor should be permitted to sue out a writ of certiorari to remove such judgment into one of the superior courts, and such judgment, when so removed, should have the same effect, and the same proceedings might be had thereon as on a judgment of such court, except that no action of debt should be brought thereon without leave of the court, or a judge thereof. Warrant.

Execution or Summons for Commitment to issue any Time within six Years.]-By the present practice warrants of execution or summonses for commitment cannot issue, where more than a year has elapsed since judgment was pronounced, without leave of the judge. By analogy to the altered practice of the superior courts, we think it desirable that in such cases, if the judgment be not more than six years old, the warrant or summons should issue without leave of the judge.

Warrants of Execution or for Commitment to be in force for a Year.]-By the present practice a warrant of execution or for commitment continues in force for three months only. It frequently occurs that within the three months the bailiff is unable to seize the goods or take the person of the party against whom a warrant has been issued, although, if a longer period were allowed for the purpose, he might obey the warrant. This necessitates frequent renewals of the warrant, producing inconvenience and expense.

We therefore recommend that the warrant should be in force for one year, but that at the expiration of every calendar month the bailiff should be required to enter in a book kept for that purpose whether the warrant had been executed, and if not, why not; and that this book should be always open to inspection without fee; and that in the case of foreign executions, the bailiff of the foreign court should be required to make a similar entry. Executions.

Questions have arisen as to the mode of determining the priority of executions when sued out of the county court.

Priority of Executions from County Court inter se.]— We think that the priority of executions sued out of the county court should be determined by the time at which an application is made to the clerk to sue out execution, and that he should be required to enter in a book to he kept for the purpose the precise time at which such application was made. This provision is necessary, because the warrant is delivered to the bailiff by the clerk, and not by the party, as in the superior courts. The only effective step which a party can take for the purpose of suing out execution on his judgment is to direct the clerk to issue the warrant.

In Conflict with Executions from Superior Court.]Doubts have frequently arisen as to which execution is entitled to priority, where executions have been issued against the same defendant from the superior court and the county court. No express provision has at present been made upon this subject, and it is important that the question of priority between these conflicting executions should be settled.

To depend on Priority of Instructions to Clerk or Delivery to Sheriff]-We think that the priority should be determined by the time of the delivery of the writ to the sheriff to be executed, or of the application to the clerk to issue a warrant to be executed, as the case may be.

(To be continued).

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