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LIBRARY OF THE
YATES ALEXANDER & SHEPHSARD,
LONSDALE BUILDINGS, CHANCERY LANE, W.C.
LONDON, NOVEMBER 5. 1881.
THE MANCHESTER TRIBUNAL OF ARBITRATION is now, it CURRENT TOPICS.
appears, in full working order, so far, at least, as regards arbitrators, rules, and scale of fees. But sad to say, although there are numerous
judges doubtless eager to leave their mills and counting-houses, MR. R. H. Leace, the Senior Registrar of the Chancery Divi- and to forsake the dull routine of making money; although there sion, has been granted further leave of absence until Christmas.
are rules framed on the attractive principle of making as little regulation as possible”; although there is a scale of fees "arranged
in a spirit of economy,” the public display a shocking lack of WE UNDERSTAND that Mr. J. N. HIGGINS, Q.C., will in future
appreciation of these advantag There is one suitor only before attach himself to the court of Mr. Justice Kay.
the court. Now, although a good deal may be done in the way
of lengthening out the hearing of a single case, an end must come BY ARRANGEMENT with the leading counsel present in the Court judicial machinery standing idle for want of raw material. The
sooner or later, and then there confronts us the sad spectacle of Appeal, sitting at Westminster on Wednesday lastfinal question which now must press seriously for consideration by appeals will not be taken at Lincoln's-inn till Monday next.
the promoters of the new tribunal is how to ensure a constant
supply of controversy. It appears to us that they might take a hint WE UNDERSTAND it has been arranged that, in the absence of from the practice prevalent elsewhere. It is, we believe, usual
church the Lord Chancellor, Lord Penzance will preside at the sittings to present a book to the first couple married in of the House of Lords for hearing appeals during the present chapel
. Now if the promoters would present a handsomely-bound month, and that Lord Cairns will preside at the sittings during copy of the Conveyancing Act, 1881, to the originator of the December
“great first cause," at the same time suggesting that the tribunal will be ready to discuss points of doubt arising under that Act,
we think there would be a reasonable prospect of occupation for THE TRIAL OF LEFROY will probably rank among the increasingly the Tribunal. and inordinately lengthy criminal investigations of recent times, but some exaggerated statements
have appeared as to the number of witnesses to be examined. We understand the number to be THERE IS A GROWING ANXIETY among a large class of solicitors called by the prosecution is 69.
as to the course which will be taken by the Council of the Incorporated Law Society with reference to settling the scale under
the Solicitors' Remuneration Act. The council ought to have, and IT 18 UNDERSTOOD that progress is being made with the scheme no doubt will have, through its president, a leading part in settling for placing the funds paid into court in the Queen's Bench Divi. the general order which will prescribe and regulate the remunerasion under the control of the Chancery Paymaster, and it is prob- tion of solicitors in conveyancing matters. And before the order able that as soon as the new rules rendered necessary by the is made the whole council will have an opportunity of considering transfer have been finally settled, the change will be effected. its proposed provisions, and making observations and suggestions
thereon, which must be taken into consideration by the framers
of the order before it is made. We agree with our corresTHE FOLLOWING are the rooms in the Royal Courts of Justice pondent ALIQUIS (who, by the way, does not belong to the now occupied by the Chief Clerks of Mr. Justice CHITTY :-Mr. - smaller fry” of whom he speaks) that no one supposes the BURNEY is placed in room No. 252 ; Mr. HAWKINS in room 315; council will consciously ignore or slight the interests of the and Mr. MARSHALL in room 303. The rooms of the junior clerks humbler members of the profession. But there is a widespread in each division are contiguous to those of their respective Chief feeling that a body composed mainly of partners in large firms, Clerks.
whose business lies chiefly in large transactions in which a very
small percentage will be remunerative, may not be fully aware of THE PROMOTION of Mr. Justice LINDLEY to the Court of the amount of labour and anxiety involved in those comparatively Appeal deserves the plaudits bestowed upon it in the daily press. small transactions which form the staple of the business of the It is necessary to have judges of learning in that court, and the great majority of solicitors. It will be a fatal mistake to pronew Lord Justice is a judge of great learning, and not less dis-pound a compulsory scale of remuneration on purchases which, tinguished by common sense, fairness of mind, and unvarying like the last voluntary scale, actually gives, on a small purchase, courtesy: The appointment of Mr. FORD NORTH, Q.C., to the less to the solicitor for all the labour and responsibility of injudgeship in the Queen's Bench Division vacated by Lord Justice vestigating the title, &c., than the auctioneer receives for the LINDLEY occasioned a little surprise when it was first announced. mere sale. Perhaps we may be permitted to suggest that it is But it is only fair to add that the more his appointment bas been above all things desirable that the president of the Incorporated thought over the less is the surprise, at any rate in Lincoln's-inn. Law Society, and the president of the country law society, Mr. NORTH, during alnıost the whole of his career, has had a who is to be his colleague on the committee, should be large and important practice, and in the last few years he has thoroughly at one as to the scale to be allowed in small transacshown considerable skill and ability as a leader in one of the more tions. Divided counsels will inevitably lead to disaster. stirring and active courts of the Chancery Division. As a junior Mr. North was especially noted for the neatness and precision of his draftsmanship both in conveyancing and in drawing pleadings. THE SOLEMN CEREMONY of the presentation and swearing of The qualities which produced these merits continued to be seen in the Lord Mayor, which will take place on Wednesday next in the his arguments while within the bar, and they will, no doubt, do Queen's Bench Division of the High Court, is dealt with somehim good service on the bench. It is too much to ask of every what singularly by the Judicature Act of last session (44 & 45 newly-made judge that a great career shall seem a certainty for Vict. c. 68). By section 17 of that Act it is enacted that “the him. It is something to feel sure, as we do in the present casc, presentation and swearing of the Lord Mayor of the city of that the new judge will prove a good, serviceable, working London, which has heretofore taken place in the Court of Exmember of the court.
chequer at Westminster after every annual election into that
office, pursuant to charters granted by her Majesty's royal pre- and which continue strongly to hold,
is that our decessors to the citizens of London, and to " 24 Geo. 2, c. 48, present system of allowing the characters and liberties of “shall henceforth take place in the Queen's Bench Division of her our fellow subjects to be disposed of at quarter sessions Majesty's High Court of Justice, or before the judges of that under the guidance of persons totally destitute of special training Division at the same time and in the same manner has hath been or fitness, is in reality nothing short of a public scandal, and could heretofore accustomed in the Court of Exchequer.” Turning to not long continue could public attention be sufficiently awakened 24 Geo. 2, c. 48, s. 11, we find it there recited that the charters to it. The appointment of competent paid professional chairmen direct that “the Mayor of the city of London, after he is chosen, to preside at sessions, men whose knowledge and position would shall be presented and sworn before the King or Queen of England enable them to deal with all but cases of murder or other cases of in their Court of Exchequer, or before the barons of the said very exceptional difficulty or importance, is, in our opinion, the court,” and it is enacted that the “ solemnity of presenting proper mode of economising the time of our judges in this respect. and swearing in the manner and form heretofore used on the We fear the amalgamation of sessions and assizes would be an twenty-ninth day of October shall be kept and observed on the obstacle to the success of such a course, because we contemplate ninth day of November in every year." It may be doubted men of position in practice taking such appointments, as in the whether the new statute ensures all the solemnity of the old one. case of recorders. And if the sessions and assizes were held toThe old statute, read with the recited charters, expressly provides gether, there would be a difficulty about this when civil business for the Lord Mayor being received either by the Sovereign in was taken at assizes. The subject needs, and as, it seems to us, person or by the barons. The new one leaves it a little doubtful must soon receive, consideration in connection with the general whether a presentation to and swearing before an officer of court judicial arrangements of the country. would not be equally valid with a presentation to and swearing before the judges; for, says the statute, the presentation and swearing are to take place in the Queen's Bench Division or THE ACT OF THE LATE SESSION, “ to amend the law of Coroners before the judges of that Division. The oration, in delivering in Ireland,” 44 & 45 Vict. c. 35, deserves the attention of the legal which the late venerable Chief Baron used to take so much de- profession. It will be remembered that Sir R. Cross's Consolidalight, may, we hope, be considered to be permitted rather than tion Bill of 1879, which applied to England only, restricted the required by the statute.
office of coroner to barristers and solicitors. Any hopes which may have been founded on this measure have been doomed to be
disappointed, for when we read the Irish Act of which we speak WE OBSERVE that Mr. Justice WATKIN WILLIAMS has been cine or surgery, and registered as such under the Medical Act of
we find that any person who “is duly qualified to practice medimaking some observations to the grand jury at the Exeter Assizes with regard to the present system
of holding four criminal 1858, or any Act amending the same,” is qualified to be elected assizes yearly. He observes that there seems to be an absurdity It is left, therefore, to the electors, who, in Ireland, by 9 & 10
coroner equally with a barrister, solicitor, or justice of the peace. in the present arrangement by which the quarter sessions are held Vict. c. 37, s. 8, are those who enjoy the county parliamentary one week, and a week or two afterwards a similar machinery
franchise, to decide whether a doctor or a lawyer is a proper brought into play for the purpose of trying what, with very
few exceptions, is a very similar class of prisoners. We think that person to fill the post. The Act 44 & 45 Vict. c. 35, also abolishes every person familiar with the course of criminal practice must the property qualification ; prescribes an annual salary, equal to the have felt this. The cases that come before the judges at assizes average amount of inquests beld for five years, in lieu of fees; are not, in many cases, necessarily more difficult, nor do they cuts down the duration of the poll at elections from two days to
poor” witnesses at a rate not necessarily involve heavier punishments, than those tried" at one; provides for the payment of “ quarter sessions. A larceny may be as difficult a case as a per- exceeding two shillings a day, and empowers a coroner to discharge
a jury in case of disagreement and summon a fresh one. jury, and if there is a previous conviction, may involve penal England, it will be remembered, that, in case of inability of a servitude. In the one case our system requires the highest judicial coroner's jury to return a verdict, the coroner is functus officio, other, some muddle-headed local magnate, without the slightest unless agreement should be arrived at by the curious process of a judicial training or capacity, may preside. The suggestion of the lecture from the judge of assize in open court. learned judge is, that there should be some sort of an amalgamation of the sessions and assizes; that they might be held together quarterly, and if it were thought necessary by the local authorities to have the assistance of a judge of the High Court of Justice, they Mr. Hunt's toast at the Onio bar dinner :-To Our Clients, - In the hours of
The following affecting sentiment was, says the Central Law Journal, could demand it, but if not, they need not do so. This would our ardent desire to impart to others that deep knowledge of the law for which obviate the inconvenience, loss of time, and trouble involved in our years of student life and later experience so eminently qualify us, our having a double machinery for similar purposes. This suggestion
client is there to listen and believe. In our hours of despondency and sorrow is worthy of consideration, but the learned judge, of course,
over untoward judgments and adverse verdicts, our client is there to receive throws it out quite in the rough, and, before deciding as to hours of victory, when our hearts swell with the memory of our successes in
our execrations, because his proofs did not support his statements. In our its desirability or otherwise, it would be necessary to know verdict and judgment, lo, our client is there to wring our band in congratula, in detail how it was proposed to fill in the sketch.
tion and admiration-and pay our fee. And in our festivities, wben the good The learned judge suggests that it would be a great advantage to things of this life, in nieat and drink, are before us, and the bowl goes round and the judges, as well as to the local magistrates, that they should be beauty smiles upon us, and we glow over the thought that our bank accounts
are ample, and our communications with our clients have driven want for ever associated together in the administration of the law of the country. from our doors, what can be mere fitting—more delicately and more beautiWe do not know whether the learned judge had any definite idea fully appropriate-than that our clients should be remembered and toasted ? in his mind when he made this somewhat complimentary remark In the Queen's Bench Division on Thursday, says the St. James's Gazette, to the grand jury, but we fail exactly to see the meaning of it. A before Grove and Bowen, JJ., Willis, Q.c., with whom was Murray, on chairman of quarter sessions trying a case in one court, and a behalf of the defendants in the case of Nerlander v. Eddolls, appealed against judge trying a case in another, cannot, as far as we can see, derive not being a solicitor was entitled to recover the sum of two guineas for legal
a decision of the judge of the Southwark County Court holding that a person much advantage from their mutual proximity. The former might work dono and disbursements made in connection with a case tried in that occasionally consult the latter if puzzled by any point of law, but court. No one appeared in support of the decision. Their lordships were of we doubt whether this would really prove of much advantage in opinion that the case came within the provisions of the Solicitors Acts, which practice, and what advantage the judge can derive we are at a prohibited unauthorized persons from recovering costs claimed by them for
work done as agents in the preparation and conduct of causes in the county loss to see. So far as any benefit may be derived by the unpaid
The restriction was a most wholesome one, as it protected suitors magistracy from observations of the judicial demeanour and im- from being made the victims of mere knaves who touted for business outside partiality of the judges, they have opportunities of observing the county courts. If the restriction were remored, legal proceedings would be those characteristics already at assizes, and would have less rendered no cheaper ; on the contrary, the costs would be much increased by opportunity if occupied at assizes by judicial duties of their regular solicitor's bill, be subject to the taxation and the control of the court.
allowing any person to make any charge he chose, which would not, like a The opinion which we have often expressed before, In these circumstances the decision of the county court judge must be reversed.
libel. Of course if such libel is wholly unconnected with the subTHE NEWSPAPER LIBEL ACT. ject matter of the original libel it would, we should think, make The provisions of the Act passed during the last session, intituled, But it may often happen that it is incidental or necessary to the
the letter or statement of explanation or contradiction unreasonable. somewhat clumsily, the Newspaper Libel and Registration Act, vindication of the party libelled that he should accuse his accuser. introduce important changes in the law relating to libel. These If A. at a public meeting accuses B. of misapplying funds, a letter provisions illustrate very forcibly the disadvantages arising from of contradiction alleging that A. was once guilty of adultery would the piecemeal mode of legislation which unfortunately is scarcely be clearly inadmissible; but how if it is a necessary part of B.'s avoidable owing to the rapidly fluctuating exigencies of modern explanation to allege that A. was the party who misapplied the civilization. It is impossible that the law should preserve any funds ? Thus our editor will be placed in a delicate position. thing like breadth and symmetry of general structure, exposed as
The 3rd section of the Act is one which will be very beneficial. it is to this constant patching and paring: But [the legist or It prohibits the commencement of any criminal prosecution against student who would fain approach the law from a scientific point a newspaper proprietor, publisher, or editor for libel without the of view must admit with a sigh that the law was made for men, allowance of the Director of Public Prosecutions, or in Ireland of not men for the law. It is like the case of an old country house; the Attorney-General. We adverted some time ago to the neces. the original design has been entirely lost sight of; the lines and sity for some check on the power of the private individual to set idea of the old structure can hardly be conjectured, what with the Crown in motion in cases of criminal prosecutions for libel, and wings added here and stories there ; but, after all, houses are it appears to us that this check will prove most convenient and meant to be lived in, and the successive owners were obliged to
salutary But here the objection to the piecemeal character of the make elegance and symmetry subservient to use.
legislation which we before put forward again arises. Why should The first thing that strikes one with regard to the Act is that this protection be confined to newspaper proprietors and editors ? it obviously arose out of certain definite exigencies in connection We can imagine many cases in which well-meaning persons may with the newspaper press, and that little or no attempt was have unfortunately brought themselves within the law of libel probably made to consider the matters directly aimed at in their without much, if any, moral blame attaching to them, and against relation to the law of libel in general. The worst of legislation whom it is not right that a criminal prosecution should be instituted of this sort is that it necessarily involves a possibility of entirely to gratify private malice and vindictive feeling. We do not see, dislocating the structure of the law on a particular subject, and inasmuch as libel is the subject both of civil and criminal proceedof introducing violent anomalies and inconsistencies. Newspaper ings, why in any case the uncontrolled discretion of a private indiproprietors, publishers, and editors now stand on a different vidual should be allowed to determine whether the nature of the footing in certain respects from that of other persons with regard case calls for the vindication of the public right, and consequently to the law of libel. It may be right that they should do so, but the application of criminal law. we doubt whether the question has ever been duly weighed from The 4th section of the Act, as we recently pointed out, may this point of view, the object having merely been from time to be said to be a section reversing the decision of the Queen's time to free that particular class of persons from hardships Bench Division in Reg. v. Carden (L. R. 5 Q. B. D. 1). against which they were, perhaps justly, clamorous.
It provides that a court of summary jurisdiction, upon the The 2nd section of the Act provides that any report published hearing of a charge against a proprietor, publisher, or editor, in any newspaper of the proceedings of a public meeting shall be or any other person responsible for the publication of a privileged, if such meeting was lawfully convened for a lawful pur- newspaper for a libel published therein, may receive evidence pose and open to the public, and if such report was fair and accu- as to the publication being for the public benefit, and as to the rate and published without malice, and if the publication com- matters charged in the libel being true, and as to the report plained of was for the public benefit; provided always that the being fair and accurate, and published without malice, and as protection intended to be afforded by this section shall not be to any matter which, under this or any other Act or otherwise, available as a defence in any proceeding, if the plaintiff or prose- might be given in evidence by way of defence by the person cutor can show that the defendant has refused to insert in the charged on his trial or indictment, and the court, if of opinion, newspaper in which the report containing the matter complained after hearing such evidence, that there is a strong or probable of appeared a reasonable letter or statement of explanation or presumption that the jury on the trial would acquit the person contradiction by or on behalf of such plaintiff or prosecutor. charged, may dismiss the case. Again, with regard to this proThe words appear to be taken verbatim from the report of a vision, the objection before urged arises. The power of pleading Select Committee of the House of Commons appointed to consider the defence to which this section relates was given by Lord the subject. A great many questions will necessarily arise on the Campbell's Act, and it is not confined to cases of newspaper wording of this section, and it appears to us that the restrictions libels, but applies to all defendants in criminal proceedings for involved by some of the words will very much cut down the scope libel. In Reg. v. Carden it was held that the magistrate, upon the of the protection afforded. What meetings may be said, in this preliminary inquiry, has no power to inquire into the matters relation, to be open to the public? Many of the meetings as to which constitute such a defence, because it is only on plea pleaded which such questions have arisen in the decided cases, and the by the terms of Lord Campbell's Act that the truth of the libel proceedings of which are commonly reported, especially in country becomes material. This decision must be taken to stand as to newspapers, are not, we apprehend, open to the public. Is a poli- cases other than those dealt with by the section of the Act we are tical meeting, to which the admission is by ticket only, open to discussing. Therefore, in the case of a newspaper proprietor or the public? We do not suppose that meetings of vestries, boards other such person connected with a newspaper as mentioned in of guardians, other public boards, and such like, are open to the the section, the magistrate can inquire into the truth of the libel, public in fact. Nor, again, are meetings of shareholders, sub- and whether its publication was for the public benefit; in the case scribers to large charities, and other similar meetings. It seems of any other person he cannot. Take the case of a person writing doubtful whether any meeting to which there is not absolutely free a libellous letter to a newspaper and being indicted with the editor admission to any member of the public who chooses to apply for for the libel. The magistrate apparently, on proof of the publicait can be said to be open to the public.
tion of the libel, is bound to commit the one for trial, whereas in The provisions that the report must be fair and accurate, and the case of the other he must go into the further question arising published without malice, do not present much difficulty. The upon the defence that the libel was true, and that it was for the question whether the publication was for the public benefit may, public good that it should be published, and may come to the no doubt, give rise to difficulty, but the same question arises in the conclusion that he ought not to commit for trial. This seems to case of a plea under Lord Campbell's Act to an indictment for be an anomaly. libel, and a jury may be trusted to deal reasonably with such a The Act provides for a summary conviction and fine in cases of question. More difficult questions will arise as to whether letters libel where the defendant consents to the case being summarily or statements of explanation or contradiction tendered to the news- dealt with, and also brings libel within the Vexatious Indictment paper by the plaintiff or prosecutor are reasonable. An editor will Act. The provisions of the Act with regard to the registration of sometimes be placed in a difficulty. It will not unfrequently hap- newspapers deal with matters of machinery, and have already been pen that the letter or statement so tendered will itself contain a discussed in our columns.
is not so plain. It has been stated by a very eminent judge of the THE PROCEDURE COMMITTEE'S REPORT. Chancery Division, that two-thirds of the cases which come before III.
him are pure common law cases. Why, then, should it have been
laid down by the same learned judge that the mere circumstance A FURTHER portion of appellate jurisdiction is cut out for the of an action being brought in the Chancery Division is a sufficient Court in Banc, namely, appeals from chambers in the Queen's reason for following a different practice as to discovery from that Bench Division.
sanctioned by the Court of Appeal in the other Division ? Some “Similar considerations have led us, on the whole, to the conclusion that may think that interrogatories may often be quite as idle and the interlocutory appeal from the judge at chambers in the special cases in mischievous in the former Division as in the latter. But at any which, under resolution 9, it will be allowed should be to the Court in Banc, rate the opinion is held; and it may be that different rules on which must, as we have seen, exist for some purposes, and which can transact the appeals from judges' chambers more expeditiously, and probably with some points should prevail in different classes of actions, though less expense to the suitor, than the Court of Appeal.”
not in actions distinguished by this rude and inaccurate classificaHence it is proposed as follows:
tion. But clearly the distinction should be minimised, and its
limits should be carefully laid down. It is submitted that these "8. The appeal from a master shall be to a judge in chambers. "9. The appeal from a decision of a judge åt chambers shall be to the objects would be best attained if worked out by a court of appeal Court in Banc; such appeal shall only take place, in cases of special difficulty for practice more constant in its constitution than the present and importance, when allowed by the judge giving the decision, or with court (a quality, however, in which the present Court of Appeal special leave of such court.
surpasses that which is proposed by the Committee for one merely “ As the jurisdiction of the judge at chambers extends beyond matters of of the Division), and in which the two lines into which practice procedure, the following resolution was necessary :
"10. The resolution as to limiting appeals from a judge in chambers shall tends to separate might be equally represented, and by whose apply to matters of procedure and practice only."
decision all judges would be bound. The advantages of a court We are at present concerned with these resolutions only so far constant in its elements may be well illustrated by what took place as concerns the appeal from chambers, but we quote the whole when the Judicature Acts first came into operation. It happened that the scheme may be seen in its connection and entirety.
that for some months the business at the chambers of the Queen's Now, with much care and trouble a uniform code of procedure Bench, Common Pleas, and Exchequer Divisions was transacted for the Queen's Bench and Chancery Divisions has been twice by that very experienced and able judge, Lord Justice (then provided. First, by the schedule of rules attached to the Judicature Justice) Lush; and during his rule the practice was rapidly Act, 1873 ; secondly, in what must be assumed to be an improved assuming a clear, consistent, and practical shape.
But no shape, by the rules attached to the Judicature Act, 1875. Not judge can be expected to remain always at this harassing only this, but numerous additional rules and numerous decisions work, and on his removal from chambers, under a succession have further explained and enlarged these rules, the Court of Ap- of judges rapidly changing, and in a kind of judicial work where peal performing the useful function of upholding a uniformity of no judge considers himself bound by precedent, the practice practice. It is now proposed to throw this machinery out of gear; quickly began to fall to pieces, and everything went into confuand not, indeed, to cancel what has been done, but to provide sion. We have, then, a reason why for practice there should be means for its cancellation, and to draw the procedure into separate
a court of appeal as constant in its elements as can be reasonably lines, by creating two distinct Courts of Appeal for the Queen's attained, and one where each kind of practice (as things now Bench and the Chancery Divisions, the latter of which is to con- stand) should be equally represented by experience and knowtinue as now to be the Court of Appeal and the former a court ledge, but neither be predominant by a casting vote.
In such a composed of judges of the Queen's Bench Division, the one court, if anywhere, a serious attempt might be reasonably anticicomposed of judges of higher, the other of judges of less pated to establish, so far as possible, a uniformity of practice, and rank and authority, yet the one of less rank and authority not to discriminate carefully the classes of cases in which, if that were bound (as it certainly would not in the proposed state of things be found necessary, different rules should prevail. There would be bound) to follow the decisions of the one of higher rank and no difficulty in constituting such a court from the judges of authority.
appeal; and the reason above stated points to a court of two This is so strange a result that the very statement of it is enough members of the Court of Appeal, selected by the court for that to throw doubt on the proposal ; and, if this is the only alternative, purpose, continuing to exercise their function without change for it would seem better to retain the present system.
à reasonable length of time (say three months), and changed If the object is to lessen the number of appeals on matters of alternately, so that the tradition might continue constant. Furpractice in the Queen's Bench Division, this might be readily done ther, it is manifestly desirable that the questions of practice should by taking away the appeal to the Divisional Court, and sending the be rapidly disposed of, and should not either be themselves litigant direct to the Court of Appeal. But although this would delayed by the rarity of the occasions when the court sits to take reduce by half the number of hearings of those cases which such business, or, by their interposition, distract and disarrange, as now, reach the Appeal Court, and would certainly not add they do now, the order of other appeal business. And this end to the business of that court anything like the number of would also be attained by the existence of a court whose primary those which now go no further than the Divisional Court, function would be to transact such business. It is further desirable it would undoubtedly increase very materially the number that the judges of such a court should be members of a comparaof cases which the Appeal Court would have to consider. tively small body, so that in the event of new and doubtful points And although the strong reluctance entertained by arising, which may occasion a difference of opinion, the general that court to occupying its time with these matters is, to a great this condition would also be answered by the court now proposed.
sense of its members may be taken with the less difficulty. And extent, due to their consciousness that almost every hearing by them of a matter of practice is a third appeal, with a fourth set of
If, however, the Court of Appeal cannot be raised to such a costs, that reluctance would probably still continue if the ground strength as to allow of two judges being withdrawn from it for of objection were lessened by the hearing being only a second this purpose, the same object might be effected, though less perappeal. For even now these appeals interrupt the regular course fectly, by constituting the court of two judges of the High Court. of business ; if increased in number they would do so still more. Yet such an alternative could not be accepted without grave
misThey also consume the strength of a court, which thinks, perhaps givings whether the results would be as favourable, or nearly as truly, that it might be better occupied than in hearing matters of favourable. It is easy to speak of points of practice as subordinate secondary importance.
and trivial ; but, in fact, all who are experienced in the conduct of But, on the other hand, it would be a most serious misfortune if litigation know well that they are of the highest importance to the the controlling action of an appellate court acting for both right and just trial of the matter litigated; and if judges of the Divisions were removed.
Court of Appeal continue to be what they are now, in weight, There is, howerer, another point to be considered. It is believed knowledge, and in breadth of view, it is not easy to see why their by many, and the present proposals seem to exaggerate this view power and ability should not be used to bring and keep into a to the highest point, that the course of procedure in the two coherent and steady shape so important a branch of law. Divisions ought, in some respects, to run in different lines. Why, And there is this further consideration. Is it prudent or reason