006-NLR-NLR-V-08-ROCKWOOD-v.-COS-MAHOMADU.pdf
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ROCKWOOD v. COS MAHOMADU.
D. G., Colombo, 13,955.
Assessors in civil and criminal cases—Right to demand remuneration—Jurisdic-tion of Court to decree fees of assessors.
There is no provision in the common or statute law of this Colonyentitling assessors in civil or criminal cases to demand remuneration for. their services, which enables a Court to order- payment of any fee to anyperson summoned as an assessor, except in cases under the Land Acquisi-tion Ordinance; nor has there -been a continuous custom or practice-whereby District Courts have acquired jurisdiction (if such jurisdictioncan be so acquired) to decree fees to assessors.
T
HIS was an action by the plaintiff, a doctor of medicine,against the defendant, his patient, to recover fees for pro-
fessional services rendered. The plaintiff’s claim amounted inthe aggregate to Rs. 6,027. The defendant took exception to thereasonableness of many of the items of the plaintiff’s bill andtendered Rs. 2,324.75. On the motion of'the defendant, the Court,with the consent of the plaintiff, appointed three assessors to beassociated with the Judge in the trial of -this case.
_ After a careful analysis of the different items of the bill, judg-ment was entered for the plaintiff for Rs. 3,338.46, with costs'inthat scale, and a further order was made that “ each of the assessorsbe paid a fee of Rs. 31.50 for each day on which they sat, ^ind thesewill be taxed against the defendant. "
The defendant appealed.
7-1
1903
October t.
1903.October 7.
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The case came up for argument before Layard, C.J., andWendt, J., on 3rd August, 1903.
Domhorat, K.G., for appellant.—The costs should be divided, asthe amount claimed was Rs. 6,027, the amount tendered Rs, 2,324.75and the amount for which judgment was entered, viz., Rs. 3,338.46,was nearer the defendant’s figure than the plaintiff’s. Further,there is no provision in law for the payment of assessors. They arelike jurymen. Unless there is an agreement between the parties, noone can be charged with either the whole or the half fees as costs.Charter of 1833, § 20; No. 19 of 1844, § 1; Ordinances No. 21 of1852; No. 2 of 1854; No, 11 of 1868, § § 120, 138; No. 1 of 1889,§ 53; No. 15 of 1898, § 277. [Objection was also taken by thelearned counsel to plaintiff’s right to sue, according to either0 theEnglish or Ceylon Common Law, but it was not pressed.]
Van Langenberg, for respondent.—As regards assessors’ fees,they are costs. The plaintiff only gets judgment in the class inwhich he succeeded. Undoubtedly, he ought to pay any extracost the defendant may have incurred by having to answer in ahigher class.
Domhorat.—Assessors’ fees are not taxed as costs.
Layard, G.J.—We will inquire wh-.b the practice is in theDistrict Courts of Colombo and Sandy.-
Cut. adv. vult.
7th October, 1903. Layard, C.J.—
There appears to me to be no reason to interfere with thejudgment in favour of the plaintiff for the sum of Rs. 3,338.46.There is one other point which was argued before us by appellant’scounsel which requires consideration.
The appellant’s counsel argues that the District Court has nopower to order that the assessors be paid a fee of Rs. 31.50 for eachday on which they sat, and to direct that such fee be taxed againstthe defendant. The provision with regard to assessors appears tohave been as follows. By section 20 of the Charter of 1833 everyDistrict Court was to be held before one Judge and three assessors.By Ordinance No. 21 of 1852 it was provided that the DistrictCourt might be held before a Judge without any assessors,aid subsequent to that date it was left to the discretion of aDistrict Jwlge whether he should sit with assessors or not."Under t^e Charter rules and orders were made by the Judges forsummoning and empanelling assessors, and they were suhjeet to-the same penalty for non-attendance as jurors; no provision wasmade for payment of any fee to them. Under the Ordinances
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Nos. 19 of 1844 and 2 of 1854 assessors were chosen in the190?r
cam? manner as jurors, but beyond that the Ordinance of 1844,^
which contained no repealing clause, did not interfere with Layabd,C.J.the rules and orders then in existence respecting assessors, thefirst rule (which enacted who were eligible to be assessors) onlyexcepted, which was superseded by section 1 of the OrdinanceNo. 19 of 1844. In 1868 the Legislature passed the Administrationof Justice Ordinance, No. 11 of 1868, and by part VI. ofthat Ordinance dealt with the qualification, summoning, andempanelling of assessors as well as jurors; and provided for apenally not exceeding Bs. 50 for neglect on the part of a juror orassessor to attend Court' after being duly summoned. Such wasthe Statute Law until the Criminal Procedure Code of 1888. ThisOrdinance repealed the whole of chapter VI. of No. 11 of 1868(sections 120 to 138, both inclusive) and the whole of chapter VH.
(Buies for summoning and empanelling Assessors) so far as suchrules concern Criminal Procedure. Chapter XXIII. of thatOrdinance dealt with the liability to serve as jurors or assessorsin criminal trials. Again, no provision was made for the paymentof fees to assessors or jurors. Then followed the OrdinanceNo. 1 of 1889, which repealed so much of Ordinance No. 11 of 1868as had not already been repealed, and provided that the DistrictJudge may, at his own instance or upon the application of anyparly, have three assessors associated with him at the hearing anddecision of a cause or other proceedings, such assessors to beselected and summoned in terms of rules to be made by the Judgesof the Supreme Court under the provisions of section 53 of thatOrdinance. That section provides for the Supreme Court makingrules, amongst other things, for the summoning, empanelling, andchallenging of assessors; but the Legislature has nowhere providedfor the payment of fees to assessors, or has enabled this Court to-lay down rules providing for the payment of fees to suchassessors. I cannot find any provision in our Statute Law for thepayment of a fee to either a juror or assessor in a criminalprosecution- or civil case. The only general provision that has-ever been made by the Legislature for any payment to a jurorand assessor is limited to those summoned for a criminal trial,who by the provisions of section 277 of the Ordinance No. 15of 1898 (which Ordinance repealed the Criminal ProcedureCode above mentioned) are entitled when serving- as a juroror assessor at any Court-house more than five miles from hisresidence to an allowance for his travelling expenses, and, if he isobliged to sleep from home, for his board and lodging, suchallowance to be computed, at such rates as the Governor, with the
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1903. advice of the Executive Council, may from time to time determine.
October 7. This provision appears to emphasize the fact that at any rate noLayasd, C.J. juror orassessoris entitled to a fee for attending as such
at a criminal trial, and I can find no provision which makes anydifference between an assessor attending as such at a civil trialand one' summoned to attend a District Court criminal trial.There is therefore no provision of the law which entitlesassessors under any circumstance to demand a fee, and I cfan findno provision in any Ordinance which enables a Court to order ,apayment of any fee to any person summoned as an assessorexcept in land acquisition cases. The question still remainswhether there hasbeen a continuous custom or practice having
the forceof lawby which,-the District Courts have obtained
jurisdiction to decree a fee to an assessor (if jurisdiction can beobtained by such practice or custom, which I doubt). Certainly 'in criminal cases fees are never awarded to assessors, and theDistrict Judges of Kandy and Colombo, who have been consultedby us, have replied that a very limited number of cases have beentried bythem inwhich assessors have been 'employed in civil
cases. Each of them can only refer to two cases tried by them.The Ka^dy Judge never appears to have exercised such ajurisdiction during the ten years he has presided in that Court.In one case he says the assessors were paid no fees; in the otherjudgment went against the party at whose instance fees w®r®fixed, and he was condemned to pay such fees. The DistrictJudge' of Colombo has twice directed the losing party to pay theassessors’fees. Icannot find therefore that there has been a
uniform practice with regard to the payment of assessors’ fees inour Courts. I think, therefore, the order of the District Judgedirecting the defendant to pay the assessors’ fees in this casecannot stand, and must be set aside.
The appellant further complains that the. District Judge hasallowed the plaintiff his costs in class V. Plaintiff’s counseladmitted it would be. just that plaintiff should pay to defendantany extra costs incurred by defendant by reason of the actionhaving .been, brought in a higher class than it need have been.The amount recovered by plaintiff falls within class IV. Theplaintiff is entitled to costs in class TV. only, and must pay thedefendant any extra costs defendant may have incurred by reasonof this action having been brought in class V.
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■ Subject -to the above modifications, I would affirm the judgmentof £he District Judge and dismiss the defendant’s appeal with costs.
This judgment does not affect the money which was deposited inCourt by the plaintiff and defendant and has since been paid oiA
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"Wendt, J.—
I concur. The Chief Justice’s review of the legislation upon thesubject shows that a Court has no jurisdiction to order a party to October 7.on action to pay fees to the assessors summoned and empanelled Layabd.C.J.to assist the Judge. I do not, however, anticipate that this rulingwill cause any practical inconvenience, as in maggi cases theparties will be ready to agree at the inception of the trial to somearrangement for remunerating the assessors for their Services.