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but the court may order separate trials of such as cannot conveniently be tried together.
The parties are entitled to exhibit interrogatories, and obtain discovery from one another. Any party may give notice to another, in whose pleadings or affidavits reference is made to any document, to produce it for his inspection, and to permit him to take copies. The court may also order the production, upon oath, of such documents relating to any matter in question as it-may think right.
There is to be no local venue for the trial of any action; but the plaintiff may choose the county in which he wishes the trial to be had, and the action shall be tried in the place which he names; if he names no other place of vtrial, it shall be tried in Middlesex ; but a judge may order it to be in any other place.
Actions may be tried in either of four modes; namely, before one or more judges, or before a judge sitting with assessors, or before a judge and jury, or before a referee. The plaintiff may choose also the manner of trial; but the defendant may give notice that he wishes to have the issues of fact tried before a jury, and then they shall be tried in that mode; or he may apply to the court for a trial in any other of the ways mentioned, and the court may determine the mode of trial.
In the absence of agreement by the parties, and subject to rules of court in particular classes of cases, witnesses at the trial are to be examined viva voce and in open court; but when there are sufficient reasons, the court may order that particular facts may be proved by affidavit, or that a witness may be examined by interrogatories before an examiner, when his attendance in court ought to be dispensed with. Upon interlocutory applications, evidence may be given by affidavit; but the court may order the person who makes an affidavit to attend for cross-examination.
Either party may call upon the other to admit any document (saving all just exceptions), and, in case of refusal to admit, the costs of proving it shall be paid by the party who refuses, whatever may be the result of the action, unless the court certify that the refusal was reasonable. Power is also given to the court to order the inspection of property, or the entry of any persons into land or buildings in possession of any party, and observations to be made for the purpose of obtaining full information and evidence.
The costs of proceedings are to be in the discretion of the court; but the rules are preserved by which trustees and other persons are entitled to costs out of a particular estate or fund.
A new trial is not to be granted on the ground of misdirection, or of the improper admission or rejection of evidence, unless the court is of opinion that some substantial wrong or miscarriage has been thereby occasioned. Bills of exceptions and writs of error are abolished, and all appeals to the Court of Appeal are to be by way of re-hearing, and to be brought by notice of motion in a summary way; and no appeal is to operate as a stay of execution or of proceedings, except so far as the court may order.
Such are some of the principal provisions of the Act which is intended to remedy the defects in the existing procedure; it is confessedly the most sweeping measure' there has ever been passed in regard to the department which it affects. Of course, there will be great differences of opinion as to its chances of success, and, until it has come into successful operation, many will think that it is an attempt to remove distinctions and forms which are necessary and essential parts of the law, and that the attempt will only result in endless confusion, entailing evils far greater than those belonging to the present system. But it must be remembered that it is not a hurried measure, accomplished by ardent reformers imperfectly acquainted with the subject which they were handling, and bent only upon destroying the existing institutions. It is an Act passed with the recommendation and approval of the most conservative class in England; it was brought in by the Lord Chancellor, and was criticised and discussed most carefully in every part by the eminent lawyers in the House of Lords, and, after it left them with their assent, it was again criticised and discussed by the Commons. The public discussion in the newspapers indicated the feeling of the profession and the educated classes in regard to it. From the first there seemed to be the most unusual agreement that the Act, or something like it, must pass. All seemed to be at one on the general question; almost the only controversy was whether it should not be made still more comprehensive. It would be useless, as well as difficult, to consider now how it will work in practice. It will undoubtedly cause great expense before it can work easily, and it will probably affect injuriously the interests of some branches of the legal profession; but whether it will confer on the country the benefits which are expected, remains to be seen. The chances, at least, are in its favor; and it must be admitted that the Act itself bears in every part the marks of an honest intention to free the courts from antiquated technicalities and forms, and, make legal procedure as simple and direct as may be permitted by the subjects with which it has to deal, and that it keeps constantly in view the idea that the object of the courts and their forms is the administration of justice, without unnecessary delay or burdensome expense.
It remains to consider, in a very general way, whether there are in this country any of the evils which the Judicature Act aims at reforming in England, and whether it suggests any remedies which are applicable to our situation. It will be noticed, in reading it, how large a part of the Act is taken up with provisions which relate entirely to the constitution of the new court, and the assignment to it of the judges and jurisdiction of the old. It seems as if it were intended to blot out all their traditions and prejudices which might embarrass the working of the new system. The distinctions and conflict between common law and equity had come to be so marked, partly because they had grown up in courts wholly unconnected with one another. This cause of difference it was determined to destroy in a more effectual way than by giving to each court full jurisdiction in both branches, and allowing them to administer it in their own way. Hence the old courts have been swept entirely away, with very little sentimental regard for them or their antiquity. Whatever changes and reforms we have occasion to make, this task will probably be spared us. In those States where there have at any time been separate courts of common law and of equity, the separation has generally ceased to exist. In others, there was originally no equity jurisdiction, and it has been conferred from time to time, by statute, on the existing common-law courts, and they have now, as a general thing, pretty full equity jurisdiction. This mode of conferring jurisdiction in equity has not been very favorable to the growth of equitable doctrines, but, at all events, we have the two jurisdictions exercised by the same courts, which seems to have been considered in England the first step towards reform.
This fact of their administration by one court, however, makes the distinction and conflict between them seem all the more anomalous, because the chief reason for the distinction and conflict has ceased to exist. To illustrate this, take the case of equitable defences to actions. If a defendant should set up such a defence to an action at common law, he would be told that it constituted no defence, though the court might suggest that perhaps he might have some relief in equity. If he should then file a bill, stating the same matters which had been adjudged to constitute no defence, and praying an injunction against the maintenance of the action, the same court would probably grant it, and enjoin the prosecution of the proceeding which it had before decided could legally be maintained. Now it is difficult to see, whether from the legal or the popular standpoint, why this ghould not have been done at first. If the facts of the defendant's case are such as would entitle him to a perpetual injunction in equity, it is because those facts constitute an equitable defence to the action, and an equitable defence is as meritorious as a legal one, and frequently more so; if it were allowed in the action at common law, the same result as that which is accomplished by an injunction in a second suit might be as well accomplished by a judgment for the defendant in the first. If the facts upon which he relies are sufficient to entitle him only to an injunction for a limited period of time, the equitable relief might be given by staying the proceedings. In each of these cases the same thing would be effected by one proceeding, which now requires two. Circuity and multiplicity of action, at least, would be avoided, and the advantage would be gained of treating things as they really are, instead of as they are not.
It is not difficult to show that the change just suggested would not be a dangerous innovation, for instances may be taken from the existing practice where a similar jurisdiction is exercised by our courts in actions at common law. It is a familiar rule that a chose in action cannot be assigned at law, and that, if it be assigned, the assignee acquires only an equitable interest, which, however, entitles him to bring an action in the name of the assignor, and this action is conducted as if the assignor were really the plaintiff. Yet, if the defendant attempts to set up, by way of defence, a discharge or release by the plaintiff, or a payment to him, made after notice of the assignment, the other party may then show what the facts really are, and that the real plaintiff is not the person that he seems to be ; if this is shown, the defendant will not be allowed to avail himself of his legal defence. Here is an instance in which a court administering common law deprives a defendant of a defence which is a perfect legal answer to the action, because the defence is inequitable. How this practice arose may be doubtful, but it probably originated in the necessity of the case, equity jurisdiction being extremely limited. Another common instance of equitable relief being given in an action at common law, is that of judgments upon bonds and recognizances, upon which the amount due, according to the principles of equity, is ascertained, and that amount only is the plaintiff allowed to collect. It would be only an extension of the principle of these cases if the court were allowed in every cause to give the relief to which the parties are really entitled. The distinction and conflict between the two jurisdictions would then soon cease to exist. In the English Act, the clause providing that in all matters in which there is any conflict or variance between their rules, the rules of equity shall prevail, is superfluous, except to indicate the spirit of the Act. For wherever equity has established a different rule from that of the common law, the rule of equity is the Law.
The great difficulty at present arises from thinking of the law as consisting of the common law alone, whereas it consists of equity and the common law together, and the former requires attention more, if any thing, than the latter. No one can safely be advised as to any matter which is within the jurisdiction of both, by the light of the common law alone; if he should be so advised, he would be in a condition like that of one who was correctly informed of some rules of common law which had been done away with by statute. Practically, then, when any equitable matter appears in an action at common law, whether as a defence or otherwise, the court says, in effect, What you bring forward may afford very good ground for relief, but it is a matter which this court entirely ignores, and we shall proceed in the present action and give judgment just as if that ground did not exist; if, however, you will commence a proceeding for the purpose, on the same ground, and call it a bill in equity, we will then render of no effect our judgment and all our proceedings. There is no necessity for this circuity, and there can be no practical difficulty in doing away with it, and giving in each action all the relief,
VOl. VIII. 18