« PreviousContinue »
The original jurisdiction of the courts thus consolidated, and their appellate jurisdiction from inferior courts, are assigned to the High Court; the other appellate jurisdiction (with a few exceptions) is assigned to the Court of Appeal. From none of the courts is there to be an appeal to the House of Lords; so that in all cases hereafter, instead of two appeals, there will be only one. Power is given to the Queen to direct, by order in council, that all appeals to the Privy Council, not included in the Act, shall be heard by the Court of Appeal. It may thus acquire jurisdiction to determine appeals from the colonies and from the ecclesiastical courts ; in the latter class of cases, it is to be assisted by some of the archbishops or bishops of the established church, sitting as assessors.
The courts thus constituted are to be guided by certain rules prescribed for the concurrent administration of law and equity. The substance of these rules is that, in every cause, the court is to give effect to all existing rights and duties, whether they exist by common law, or equity, or are created by statute, and to take notice of all equitable matters which incidentally appear. Each party is to receive such relief on equitable grounds against the claim of any other party as he would have received in a suit in equity. If a defendant claims any relief connected with the subject of the cause from any person who is not a party, the latter may be made a party by order of court; and if it appears that the defendant is entitled to the relief against him which he claims, it is to be given. Instead of restraining causes by prohibition or injunction, it is provided that whatever would have been the ground for an injunction may be relied on by way of defence. If it be the ground only for a temporary injunction, a stay of proceedings may be granted on a summary application. In every
The other judges are to receive £5000 a year. To judges who have served fifteen years, or are disabled by permanent infirmity, pensions may be granted, of the same amount as are now granted under the same circumstances.
The annual salaries of the five judges first named are, at present, as follows: the Lord Chancellor, £10,000; the Lord Chief Justice of England, £8000; the Master of the Rolls, £6000; the Chief Justice of the Common Pleas, and the Chief Baron, each £7000. The annual pensions on retirement are as follows: the Lord Chancellor, £5000; the Chief Justices, Master of the Rolls, Chief Baron, and Lords Justices, .£3750; the Vice-Chancellors and other judges, £3500.
These provisions, without being more than just remuneration, furnish an honorable contrast to the small salaries paid to American judges, with an ill-advised parsi. mony which has been the cause of much serious injury to our judiciary.
case, all matters connected with the subject of the cause are to be adjudicated, so that multiplicity of legal proceedings concerning them may be avoided ; and wherever there is any conflict of variance between the rules of equity and those of common law with reference to the same matter, the rules of equity shall prevail.
The division of the legal year into terms is abolished so far as it relates to the administration of justice; henceforth terms are to be used only as a measure of time. For the convenient despatch of business, the High Court is to be divided into five divisions, which are named after the existing courts of which it is to be composed; they are to be called respectively the Chancery, Queen's Bench, Common Pleas, Exchequer, and Probate, Divorce, and Admiralty Divisions. The first of these is to consist of the existing equity judges who are transferred to the High Court; the next three are to consist of the judges of the respective courts of common law, from which they are named; and the last is to consist of the two judges of the Courts of Probate and Divorce and the Court of Admiralty. This arrangement, however, is not to prevent a judge from sitting in a different division from his own; and the divisions may be changed, in number or otherwise, by order in council, upon recommendation of the judges. Rules of court may be made in like manner, with the advice of the Lord Chancellor, the Lord Chief Justice, and a majority of the judges, which shall regulate the sittings of the court, the circuits, and all matters of practice and procedure consistent with the Act itself and the rules in the Schedule. Meanwhile, certain provisions are made for the distribution and transaction of business. Until some change is made by rules of court, the forms of procedure now in use are to continue to be used, except where it is otherwise provided. The principal matters of equity jurisdiction are assigned to the Chancery Division ; matters pending in the London Bankruptcy Court, and matters of which it has exclusive
jurisdiction, are assigned to the Exchequer Division; the causes pending in the different courts, and matters of which any of them have exclusive cognizance, are assigned to the corresponding Divisions of the High Court. Subject to these provisions and the rules of court, a person who commences a cause may assign it to any Division (except the Probate, Divorce, and Admiralty Division), as he may think fit. If he assigns it to a wrong Division,
any judge of the Division may, at any stage of the proceedings, direct it to be transferred to the proper Division ; or, if he think it expedient, he may retain it in his own; and all proceedings taken before the cause is transferred are to be valid and effectual, as if they had been taken in the proper Division.
Such matters as are not proper to be heard by a single judge are to be heard by Divisional Courts of the High Court, of which any number may sit at the same time. They are to be constituted by two or three judges each; the number to be three, except when it is not conveniently practicable, but in no case to be greater than three.
Appeals to the Court of Appeals are to be heard either by the whole court, or by Divisional Courts consisting of any number of judges, not less than three ; and any number of such Divisional Courts may sit at the same time. Appeals may be re-argued or re-heard before a greater number of judges, if the court think fit so to direct.
The rules for trial and procedure are contained in the Fourth Part of the Act, and in the Schedule, except so far as those matters are to be regulated by the rules of court. Permanent officers, to be called Official Referees, are to be attached to the court for the trial of such questions as shall be directed to be tried by them. Except where parties are entitled to have particular cases tried by a jury, the court may refer any question to an official or special referee, and may adopt his report in whole or in part; it may also call in the aid of one or more assessors, specially qualified, whenever it thinks it expedient, and try the cause wholly or partially with their assistance. Any question or issue also may be tried before a referee, with the consent of the parties, or without their consent, whenever a prolonged examination of documents or accounts, or a scientific or local investigation is required, which, in the opinion of the court, cannot conveniently be made before a jury, or by the court through its ordinary officers.
1 By the 84th section, the officers attached to the court are appointed in the following manner, viz.: all officers assigned to the court generally, are appointed by the Lord Chancellor; officers attached to the Chancery Division, heretofore appointed by the Master of the Rolls, continue to be so appointed; other officers attached to any Division are appointed by the President of the Division; and officers attached to any judge are appointed by such judge.
By the 87th section, all solicitors, attorneys, and proctors are to be called Solicitors of the Supreme Court, and hereafter are to be admitted by the Master of the Rolls.
Not the least interesting provisions concerning the new system are contained in the Schedule, which sketches a general outline of the procedure by which the other provisions are to be carried into effect. Henceforth all actions at common law, suits in equity and admiralty, and proceedings in the Court of Probate, are to be instituted in the High Court by a proceeding, which is to be called an action ; but, subject to rules of court, other proceedings are to be taken in the same manner as before.
Every action is to be commenced by a writ of summons, endorsed with a statement of the nature of the claim made, or of the remedy required, and specifying the Division of the Court to which it is to be assigned. The forms of writs and endorsements are to be prescribed by rules of court. Personal service of the writ is required, but substituted service may be ordered by the court for special reasons.
In all actions where the plaintiff seeks merely to recover a debt or liquidated demand in money, the summons may be specially endorsed with the particulars of the amount sought to be recovered ; and in such case, if the defendant does not appear, the plaintiff may have final judgment for an amount not exceeding the sum endorsed, and interest; but such a judgment may be set aside or varied by the court upon proper terms. When the defendant appears, and the writ is thus specially endorsed, the plaintiff may, on affidavit verifying the cause of action, and swearing that, in his belief, there is no defence, call on the defendant to show cause why he should not have final judgment; and unless the defendant shall satisfy the court that he has a good defence, or disclose facts which are sufficient, in the opinion of the court, to entitle him to defend, judgment may be given for the plaintiff. Permission to defend the action, however, may be granted on such terms as the court thinks just.
No action is to be defeated by the misjoinder of parties, and in every action the court may deal with all matters in controversy so far as regards the interests of the parties before it. At any stage of the proceedings, the names of any parties improperly joined, whether as plaintiffs or defendants, may be struck out, and the names of any who ought to have been joined may be added. Any two or more persons who claim, or are liable, as copartners may sue, or be sued, in the name of their firm ; and, in such cases, any party may require a statement, on oath, of the names of the
partners. When the defendant claims relief over against any other person, or when from any cause it appears that a question in the action should be determined between the parties and any other person, an order may be made, after notice to the latter, for having the question so determined. Whenever a plaintiff is in doubt as to the person from whom he is entitled to seek redress, he may join two or more defendants, so that the question as to which of them is liable, if any, may be determined as between all the parties. The plaintiff may also join, as parties to the same action, all or any of the persons severally liable on any contract, including parties to bills of exchange and promissory notes. When the cause of action survives, the action is not to become abated or defective by the death, marriage, or bankruptcy of any of the parties, or by the assignment, creation, or devolution of any estate or title pendente lite.
As to pleadings, unless the defendant, at the time of his appearance, shall state that he does not require a statement of complaint, the plaintiff must, within a certain time, file and deliver to him a printed statement of his complaint, and the relief or remedy which he claims. The defendant must also furnish a printed statement of his defence, set-off, or counter-claim, and the plaintiff, in like manner, a statement of his reply. These statements are to be as brief as the nature of the case will permit. A demurrer to any statement may be filed in the manner to be prescribed by the rules of court. These statements may be altered at any stage of the proceedings, by leave of court, and any matter may be ordered to be struck out which is scandalous, or which may tend to prejudice or delay a fair trial. When the issues of fact in dispute are not sufficiently disclosed by the statements, the court may direct issues to be prepared.
A defendant may set up, by way of counter-claim against the plaintiff, any right or claim, whether it sound in damages or not, and the court shall pronounce a final judgment in the same action, both on the original and cross claim. But if the court be of opinion that the counter-claim cannot conveniently be disposed of in the pending action, it may refuse permission to the defendant to avail himself of it. When a counter-claim is established, if the balance is in the defendant's favor, the court may give judgment for him for the balance. Subject to rules of court, the plaintiff may unite in the same action several causes of action,
ether it a judghout if th