The Legal Observer,

AND

SOLICITORS' JOURNAL.

SATURDAY, DECEMBER 6, 1856.

PROPOSED COMMON LAW IM-
PROVEMENTS.

Ir would appear from the comprehensive terms of the Commission of Inquiry into the mode of administering Justice in the Common Law Courts, that very extensive alterations are contemplated, and that at all events the Commissioners will be authorised to receive and consider every kind of suggested improvement. We purpose, therefore, from time to time to submit to our readers such observations as occur to us or are communicated by our contributors or correspondents. We would especially direct attention to such practical alterations as will facilitate the transaction of legal business. We conceive that by a due division of labour the judges might more readily and expeditiously dispose of the various kinds of business now brought before them, whether judicial or ministerial.

nent Practice Court, in which a single judge should preside, assisted by one of the masters, with power to the parties, at the peril of costs, of appealing to three of the judges sitting at stated times on such cases.

We are not in favour of a diminution of the number of judges. When we consider the duties they have to perform, we think they are by no means too numerous. Let us recollect the vast variety of subjects which come before the courts at Westminster for adjudication-the trials in London and Westminsterover which the judges preside; the circuits throughout England and Wales; the trials at the Central Criminal Court; the cases in the Practice Court, and the daily attendance at the Judges' Chambers, with all the new business constantly increasing in the interpretation of acts of Parliament, and enforcing their execution; and we must be satisfied that, in order to have this large amount of judicial business properly done, fifteen judges are not too many.

rience; we see how rapidly they perceive the points in issue, and how admirably they decide them. Now, if the labours of the court were subdivided amongst the judges, each taking a particular class of cases to hear and determine, it seems evident that the result could not fail to be satisfactory both to the suitors and the profession.

The first great question will be whether the three common law courts should not be to a Then it should be borne in mind, that certain extent consolidated, in order that each judges, like other classes of men, become prejudge, or a small number of judges, may pre-eminently skilful by long practice and expe side over a separate court, having jurisdiction in a distinct class of cases, without reference to the particular court in which the action or proceeding may have commenced, but all the judges, according to rotation or arrangement, sitting in a court of appeal from the judgments of the several individual courts. A court of appeal should of course consist of several eminent judges, not less than three in number; but inasmuch as on trials at nisi prius and the assizes, and inasmuch as in the courts of equity on the original hearing of causes, a single judge presides (and that in the most difficult and complicated cases), so it may reasonably be contended that a similar course should be adopted on the argument of

cases before the courts at Westminster.

There is no doubt that no small inconvenience now arises from the number of the common law courts sitting at the same time, from the difficulty of procuring the attendance of counsel who practice in all the courts; and it might be objected that if there were as many common law courts sitting on the same days as there are in equity, the present inconvenience would be increased. The leading It may well be inquired whether it can be counsel might, however, select their respecnecessary as we see on many occasions- tive courts, as they do in Chancery, and the that four of the most eminent judges should difficulty would be at an end. Besides, if it sit in their "collective wisdom," hearing the were unavoidable that the same eminent arguments of counsel, and deciding, after concounsel must appear in several courts, it joint deliberation, on some question of practice, might be arranged that some of the courts involving no material or important principle. should sit on different days. And we see no It may be asked whether it would not be disadvantage, but the contrary, in providing better that, instead of what is absurdly called that the judges should occasionally devote the Bail Court," there should be a perma-their attention to considering (either at chamVOL. LII. No. 1,500.

K K

522 Proposed Common Law Improvements-New Statutes effecting Alterations in the Law.

bers or at home) the judgments they have to deliver. The judges ought not to be overworked, and we would indeed say with Lord Lyndhurst, that they should have an opportunity of returning to the "pleasant pursuits of literature," and we believe that neither their intellectual faculties, nor their legal acumen, would suffer by such occasional change of pursuit and occupation.

It is probable, as was contemplated a few years ago, that a change in the present four terms, and in the holding of the two assizes in the country, might be beneficial. Such changes, however, require much consideration, for the last change in the terms, about twentyfive years ago, has not been productive of the expected advantages. It is supposed that three terms of somewhat longer duration than the present would be preferable, and seeing the demand for the speedy administration of justice, three circuits for the trial of civil as well as criminal cases, would be acceptable to the public, and in some cases render it unnecessary to resort to the county courts; and in this view also it would not be expedient to diminish the number of the judges.

We had occasion recently to notice that some of the courts had risen two or three days during the last term before the usual hour of four o'clock, and the blame was attached partly to counsel, but chiefly to the attorneys, and causes were struck out, and announcements made of stringent regulations for the future. With all due respect to the judges, in their anxiety to "save the time of the public," it should not be forgotten, when censuring the practitioners for not being ready to proceed, that unknown difficulties may arise in preparing for a hearing in court. There may be a want of funds, the evidence may be defective, the attorney or his counsel may be ill, or unavoidably detained elsewhere. It may also be submitted to their lordships, that the grievance of the judges being obliged to go home earlier than usual is not so great as that of hurrying the parties into court before they are sufficiently prepared. As already intimated, the labours of the judges are frequently too severe, and an occasional half-holiday by a lack of work ought not much to be lamented, either by the Bench or the Bar.

RATIONS IN THE LAW.

COMMON LAW PROCEDURE AMENDMENT ACT

(IRELAND).

(19 & 20 Vic. c. 102).

THE following is an analysis of the “Common Law
Procedure Amendment Act (Ireland) 1856" :—
1. Short title (as above).

2. 16 & 17 Vic. c. 113, incorporated.

3. 18 & 19 Vict. c. 7, and so much of section 103 of 17 & 18 Vict. c. 125, as relates to Ireland, repealed.

4. Court or judge may, by consent of parties, try

questions of fact [sect. 1 of 17 & 18 Viet. c. 125].

In these new arrangements, we conceive that as, under the Common Law Procedure NEW STATUTES EFFECTING ALTEAct, 1854, power is given to the judges to try causes without a jury, one of the judges might hold a court for the decision of actions for the recovery of debts or damages not less than £10. The supporters of the county courts would, of course, make a great outcry against such an alteration; but if there is any truth in the oft-repeated assertion that the small debts courts are eminently popular, where can be the danger or objection to the grant of a concurrent jurisdiction down to £10 in the superior courts? If the county courts are really preferable-if they are cheaper and more expeditious than the superior courtsthey will not suffer by the proposed change. Amongst other practical improvements, the fifteen masters of the common law courts might have delegated to them some of the ordinary duties now performed by the judges of the superior courts, such as the granting time to plead, the consideration of the sufficiency of particulars of demand, the administration of oaths, and other matters of routine, which their knowledge of the practice would enable them most satisfactorily to decide. They hold the position occupied in the Court of Chancery by different classes of officers:-taxing masters, registrars, and chief clerks to the judges, who have superseded the masters in Chancery. And as several of the masters are constantly at chambers, their exercising jurisdiction over such practical points as we have suggested, would greatly facilitate and expedite interlocutory proceedings, and relieve the judges of a considerable part of their labour.*

With new duties, the common law masters would be entitled to increased salaries, which are, even at present, disproportioned to the emoluments of similar officers in the equity courts.

5. Two judges may sit at the same time for trial of causes pending in the same court [sect. 2]; power to registrars to appoint fit persons to attend the second judge.*

6. Power to court or judge, upon application, to direct arbitration before trial [sect. 3].

7. Special case may be stated, and question of fact tried [sect. 4].

8. Arbitrator may state special case [sect. 5]. trial, when issues of fact left to his decision [sect. 6]. 9. Power to judge to direct arbitration at time of

10. Proceedings before and power of such arbitrator [sect. 7].

11. Power to judge to send back matters for reconsideration to arbitrator [sect. 8].

12. Applications to set aside the award [sect. 9]. 13. Enforcing of awards within period for setting them aside [sect. 10].

* The references within brackets apply to the English Cominon Law Procedure Act, 1854.

New Statutes effecting Alterations in the Law.

14. If action commenced by one party after all have agreed to arbitration, court or judge may stay proceedings [sect. 11].

15. On failure of parties to appoint arbitrators, the judge may appoint an arbitrator, umpire, or third arbitrator [sect. 12].

16. When reference is to two arbitrators, and one party fail to appoint, the other party may appoint arbitrator to act alone [sect. 13].

17. When the reference is to two arbitrators they may appoint an umpire [sect. 14].

18. Award to be made in three months, unless parties or court enlarge the time [sect. 15].

19. Rule to deliver possession of land pursuant to award to be enforced as a judgment in ejectment [sect. 16].

20. Agreement or submission in writing may be made rule of court unless a contrary intention appear [sect. 17].

523

41. Appeal upon rule discharged or absolute [sect. 35].

42. Exchequer Chamber and House of Lords to be courts of appeal [sect. 36].

43. Notice of appeal [sect. 37].
44. Bail [sect. 38].

45. Form of appeal [sect. 39].

46. Rule nisi granted on appeal, how disposed of [sect. 40].

47. Court of appeal to give judgment of court below [sect. 41].

48. Powers of court of appeal as to costs and otherwise [sect. 42].

49. Error upon award of trial de novo [sect. 43]. 50. Payment of costs upon new trial on matter of fact [sect. 44].

51. Power to court or judge to direct oral examination of witnesses [sect. 46].

52. Proceedings before and upon such examina

21. As to addresses of counsel to juries on trials of tion [sect. 47]; 3 & 4 Vict. c. 105. causes [sect. 18].

22. Power to court or judge to adjourn trials [sect. 19].

23. Affirmation instead of oath in certain cases [sect. 20].

24. Persons making a false affirmation to be subject to the same punishment as for perjury [sect. 21]. 25. How far a party may discredit his own witness [sect. 22].

26. Proof of contradictory statements of adverse witness [sect. 23].

27. Cross-examination as to previous statements in writing [sect. 24].

28. Proof of previous conviction of a witness may

be given [sect. 25].

29. Attesting witness need not be called except in certain cases [sect. 26].

30. Comparison of disputed writing [sect. 27]. 31. Certified copy of will to be sufficient evidence. 32. Court or judge may, on the application to such court or judge for such purpose, order certain documents to be taken as sufficient evidence of will, &c.

33. As to costs of proof of will.

34. Provision as to documents produced at trial and not sufficiently stamped [sect. 28].

35. Officer of the court to receive the duty and penalties, and pay them over to the inland revenue [sect. 29]; if officer neglect to pay over monies he shall be proceeded against as directed by 13 & 14 Vict. c. 97.

36. No document to require a stamp [sect. 30]. 37. No new trial for ruling as to sufficiency of stamp [sect. 31].

38. Error may be brought on a special case [sect. 32].

39. Grounds to be stated in rule nisi for new trial [sect. 33].

40. If rule nisi refused, party may appeal sect. 34].

53. Examination of person who refuses to make an affidavit [sect. 48].

54. Proceedings upon order for examination as under 3 & 4 Vict. c. 105 [sect. 49].

55. Power to court or judge to order production of documents [sec. 50].

56. Power to deliver written interrogatories to opposite party [sect. 51].

57. Affidavits by party proposing to interrogate, and his attorney [sect. 52].

58. Oral examination of parties, when to be allowed [sect. 53].

59. Proceedings upon such rule or order [sect. 54]. 60. Depositions upon such examinations to be returned to master's office [sect. 55].

61. Examiner may make report to the court [sect. 56].

62. Costs of rule and examination to be in the discretion of the court [sect. 57].

63. Judge may order an attachment of debts [sect. 61].

64. Order for attachment to bind debts [sect. 62]. 65. Proceedings to levy amount due from garnishee to judgment debtor [sect. 63].

66. Judge may allow judgment creditor to sue garnishee [sect. 64].

67. Discharge of garnishee [sect. 65].

68. Attachment book to be kept by the masters of each court [sect. 66].

69. As to costs of application for attachment, &c. [sect. 67].

70. Action for mandamus to enforce the performance of duties [sect. 68].

71. Declaration in action for mandamus [sect. 69]. 72. Proceedings upon claim for mandamus [sect. 70].

73. Judgment and execution [sect. 71].

74. Form of peremptory writ [sect. 72].

75. Effect of writ of mandamus and proceedings to enforce it [sect. 73].

New Statutes effecting Alterations in the Law.

1. An Arrestment executed to attach the effects of a debtor, as in the hands of a person out of Scotland, 88. Court or judge may strike out equitable plea shall not be held to have interpelled such person or replication [sect. 86].

4. When the estate of a debtor is brought into the 4. Decree of sale to be held as a general decree of Court of Session by process of judicial sale and rank

Notices of New Books.