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whether legal or equitable, to which the parties are entitled. As we accustom ourselves to the recognition of the fact that equity and common law are but parts of one system, the anomaly of the existing mode of administering them becomes more and more apparent.
What has been said about the concurrent administration of equity and common law in the same action, applies, of course, only to a small part of their jurisdictions. There are, besides, the cases where their jurisdictions are exclusive. But, as we regard them more carefully, the difference between them seems the more to be one of procedure and nomenclature only. They cannot well be fused further than the administering them concurrently and the use of similar procedure. In cases where the jurisdiction is exclusive, great hardship arises from its being doubtful to which of them it belongs; and the person seeking relief incurs the risk, if he mistakes it, of being put to great expense, and, perhaps, of losing his remedy altogether. In proceedings in equity, it is usual to pray not only for the specific relief to which a plaintiff considers himself entitled, but also for general relief, and the court gives him such equitable relief as he may be entitled to, although different from that specially prayed for. Suppose that in every case the court, as before suggested, should have power to give all the relief to which the parties may be entitled, it would then give the plaintiff the proper remedy, although it might be a legal one, as they now give him any equitable remedy. It would then be impossible for courts to say of the plaintiff, as under the present practice they are sometimes bound to say, What remedies at law or in equity he may now have, we need not consider.
The perusal of the Judicature Act will suggest many other instances in which the present procedure is defective, and in which the defects might be remedied without great innovations or changes, things which no one believes more firmly than the writer to be great evils in themselves, and only to be justified by much greater benefits being derived from them. Most of these instances arise from its being necessary to make use of more than one jurisdiction to dispose finally of a single matter, or, what is analogous to it, to make use of more than one action or proceeding. For an example may be taken the case where a defendant is
1 See Bassett v. Brown, 100 Mass. 355, and Bassett v. Brown, 105 Mass. 551.
liable for an injury and has a remedy over against some one else. In such cases it would often be an improvement to dispose of the whole matter in one action, by making the person who is liable over, a party, and deciding the question as between him and the defendant, as well as between the defendant and the plaintiff. Attempts are now made to do this in a roundabout way, by giving notice of the action to the person liable, but it is still necessary to prove his liability in a second action. It is not hard to conceive of a case in which a defendant might be found liable, solely on the ground of the wrong-doing of some one else (a servant, for example), for whose acts he was responsible, and yet might fail to prove the same facts in an action against the wrongdoer. These instances are only selected to show how great a reform might be effected by a little change in procedure, and a result which is now indirectly or partly attained, might be attained directly and completely.
But, independently of the division of the jurisdictions of common law and equity, there are great complaints as to the manner in which justice is administered by them separately. In mentioning some of the causes, it will be convenient to draw illustrations from the procedure in a single State, Massachusetts, and this may be done with the less impropriety, because the judges of that State may be compared favorably with any others, and have long had justly the very highest reputation ; the vicious practice of election to judicial offices has never been introduced there; and the judges are still appointed by the Governor, and hold their offices during good behavior; they perform their duties most acceptably, and without the shadow of a reproach ever having been cast upon them, so that the defects in the administration of justice there must be attributed to the system, and not to those who administer it. It is a great satisfaction to feel that the Supreme Judicial Court of Massachusetts is one institution existing among us which is deservedly held in universal respect. It ought, however, to be added, that the provision of the Constitution and Declaration of Rights, “ that they should have honor
I See Boston v. Worthington, 10 Gray, 496. This was an action against a person responsible over to the plaintiff ; the defendant had been notified of a previous action against the plaintiff. If he could have been made a party to that action, by the notice, and the question determined as between all the parties, this action would have been unnecessary.
able salaries, ascertained and established by standing laws,” is but faintly recognized.
The great evil which exists, and which includes many others, is delay; an evil which must, to some extent, always be incidental to the administration of the law. Still it is an universally acknowledged evil, and every means should be used to overcome it. The most famous English charter contained a prohibition, not only of the sale and denial, but also of delay of justice. The two first prohibitions are scrupulously observed, but little attention is given to the last. It may even be said that there is a general feeling in the profession that delay is a right to which lawyers are by etiquette entitled, and that they are discourteously treated if their opponent pushes forward the case as fast as the rules of law allow. For those who keep in mind the interests of their clients, when those interests require that there should be no delay, the great accumulation of arrears, the times fixed for certain steps, and the dilatory proceedings which can be taken by the other side, present great obstacles to rapid progress. It is easy to see the reasons which excite among business men a disgust for legal proceedings, and make them prefer to lose what. ever might be gained from them, to being subjected to their
necessary annoyance and wearisome delay. Many who commence proceedings abandon them, or submit to disadvantageous compromises ; many others think it prudent to stay away altogether.
Justice would require, if it were possible, that, whenever any person, entitled to a legal remedy, asked for it, he should instantly receive it; the necessity of ascertaining whether he is entitled to it requires certain legal forms and proceedings to be gone through, which cause delay. These forms and proceedings ought not to be more dilatory than are necessary to determine the rights of the parties, nor offer to either party any inducements to prolong the litigation, except for this one object.
First of all, it must be acknowledged that our courts and judges are greatly overworked, and that they are unable promptly to dispose of all the business which comes before them ; it is a matter of surprise that they do so much work, and do it so well, — an amount of work much greater than that which comes before
1 Nulli vendemus, nulli negabimus aut DIFFEREMUS rectum vel justitiam. - Magna Charta, c. 29.
any English court. In Massachusetts it has been attempted to remedy this evil from time to time by increasing the number of judges, and the number of judges of the Supreme Judicial Court, which was four in 1847, is now seven. There are also ten judges of the Superior Court, which has generally concurrent jurisdiction with the former in matters of common law, besides other jurisdiction ;) and there is a desire on the part of some to increase this number, owing to the arrears constantly accumulating. There is something suggestive about this. The number of judges of the existing courts, and the new court to be established, in England, is thirty-one, and these judges dispose of substantially all the litigation of England and Wales; (there are, besides, County Courts, and some others, but of a very limited jurisdiction, which, in the County Courts, does not extend above £50.) By the last census, the population of England and Wales exceeded twenty-two millions and a half. The population of Massachusetts is less than one million and a half, which is less than one-fifteenth part of the former. It will readily be seen, therefore, that there are, even in the Supreme Judicial Court alone, a larger number of judges in proportion to the population than in England. Of the English judges, eighteen belong to the courts of common law, and it is considered that this is a larger force than is necessary, and it is proposed in consequence to reduce the number to fifteen. Yet in Massachusetts the arrears are constantly increasing, even with an additional court of ten common law judges to dispose of them. These matters deserve consideration, at least, before the number of judges is increased, for possibly there exists some other remedy which it will also be necessary at some time to apply.
It cannot be doubted that a vast amount of work comes before our courts, which is unfit to come before them at all ; this can readily be seen by examining the reports. There is reason to believe also that the existing procedure encourages the increase of it. Great advantages are offered to defendants and those who are interested in delaying a determination. A preliminary cause of delay is the existence of terms, and the rules relating to them. In one of the courts, in the busiest county in Massachusetts, the terms are held twice a year; in the other, four times. Actions at common law must be commenced by writ, which can be returned only on the first day of each term, and they cannot be placed on the list for trial until the second term after they are commenced. In the Superior Court the arrears are so great that the action is seldom tried then, and often not until a year after its commencement. Yet each term lasts till within a few days of the commencement of the next, a period of nearly three months. Sometimes, by a happy combination of circumstances, and when the court happens to be held by a Judge who is gifted with an unusual power of conducting business, a plaintiff succeeds in obtaining a trial at the second term; but even this is six months or more after the commencement of the action. At the trial, exceptions to evidence and to the rulings of the court may be taken, and these exceptions may be argued before the Supreme Judicial Court sitting in banc, which sits for that purpose a short time only twice a year ; but it seldoms succeeds in hearing at each sitting all of the cases then on its list, so that it is often nearly a year after the trial before the exceptions can be argued. The time within which the court gives its decision is entirely indefinite, and, owing to the number of cases, it is often much protracted. Moreover, the practice does not prevail as with the English courts, of leaving certain questions to the jury at the trial, and entering the verdict in accordance with a ruling of the judge, reserving leave for the other party to move to enter the verdict for himself, if the ruling be incorrect, so that one trial generally disposes of all questions of fact. If any ruling of the court is wrong, and unfavorable to the party who excepts to it, a new trial is ordered, upon which the entire process may be gone through again. The instances in which a new trial should be ordered ought to be very rare, and ought to be limited to cases in which some material question was not tried at the first . trial ; and a reference to the English reports seems to show that they are seldom granted there in other cases.
1 There are Courts of Probate besides these.
2 Therefore if the courts of Massachusetts were transferred to England, with a corresponding increase in the numbers of judges, there would be in the Supreme Judicial Court 105 judges, and in the Superior Court, 150.
1 This practice seems to have prevailed at common law. 2 Tidd P. 900 ; Treacher v. Hinton, 4 B. & A. 413, 416. If this be so, it can easily be introduced into our practice by the judges, and with great advantage. A cause often depends on the determination of a single point of law; in such a case, the facts in dispute, if any, might be left to the jury, and the judge might then direct the verdict to be entered for one party or the other, according to his opinion of the law, giving the other party leave to move to enter the verdict for himself, if it be wrong. A misdirection could thus be corrected in many cases without another trial.