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It will be observed that the Government adopts the recommendation of last year's Committee in more than one important particular. The first two Sections of the Bill raise the jurisdiction of County Courts in actions of contract and tort, and for the recovery of small tenements on the expiration of leases, and upon forfeiture for nonpayment of rent, from £50 to £200. The jurisdiction in ejectment, and in cases where the title to corporeal or incorporeal hereditaments comes in question, is increased by Sec.
3 from £20 to £40. In direct conflict with the Report, however, the 4th Section extends the equitable jurisdiction from the present limit of £500 to £1,000, and further, it is proposed by Sec. 5, to invest the County Court with all the power and authority of the Chancery Division of the High Court of Justice, to relieve against fraud or mistake, to enforce a charge on a married woman's separate estate, subject to a general limit of £1,000 in respect of the damage, estate, fund, or debt.
Not without design did the Select Committee of last Session notify its disapproval of any further development of jurisdiction in Equity. According to the latest returns there were, in all the County Courts in England, during 1877, only 613 equitable proceedings, as against 655 in 1876. These results can hardly be deemed satisfactory when it is borne in mind that equitable jurisdiction was conferred upon County Courts in 1865. The paucity of Equity plaints has been accounted for by the fact that the majority of the County Court Judges are Common Law lawyers, inexperienced in the application of Equitable doctrines, and that the Registrars possess no techincal knowledge of Chancery practice. Already, in the multifariousness of their duties, the latter would bear comparison with Maître Jacques, in Molière's L'Avare, who performed the functions of cook and coachman, and when summoned, desired to know in which capacity he was required, and in which dress he was to appear.
With some show of reason has it been surmised that suitors will probably not display any great eagerness to avail themselves of the facilities for the cheap and speedy justice which the first five Sections of the Bill are supposed to afford. In other words the Government entertains a well-grounded suspicion that people may still prefer to have their differences adjusted by a superior tribunal, notwithstanding its alleged disadvantages and drawbacks.
In anticipation of such a contingency, Sec. 6 proposes that whenever an action is commenced or petition filed in the High Court of Justice, which could, under any of the Statutes, have been brought in a County Court, the High Court may deprive the plaintiff of three-fifths of his taxed costs, exclusive of disbursements. This penalty is rendered enforceable at the discretion of a Judge or Master in those cases only where he is of opinion “that there was no question of fact or law to be tried or decided of sufficient importance or difficulty to warrant the action being brought in the High Court."
Sec. 5 of the Act of 1867, to which attention has already been directed, affords a precedent for the proposed proviso. The new clause, however, in relaxing the present rule, seems to be an improvement on it, for whereas now, the plaintiff is absolutely deprived of all his costs, by the new clause it will be possible to mulct him of a certain proportion only and under special circumstances. On the other hand there are considerations which should operate in securing its withdrawal or rejection. No pressure of business in the High Court affords a pretext for relegating any portion of the work to inferior tribunals. If the Judges are unable to cope with the arrears, it would be the falsest parsimony not to add to their numbers. To dictate to a man the tribunal he shall choose is pure despotism at a time when we have the Lord Chancellor's assurance that there is no block in the Superior Courts. In bringing in the Bill under discussion, Earl Cairns announced that "the
number of cases ripe for hearing in the Court of Chancery at the commencement of the present year was somewhat less than at the commencement of the preceding one.
In January, 1878, there were 528 cases for hearing; in January, 1879, there were only 512; many of these cases have been heard and there is no arrear in the Court of Chancery. As to civil business in London and Middlesex: on the rith January, 1878, there were 1,164 causes ready for trial as against 957 on the corresponding day of the present year. On February 17th last, there were 843 causes awaiting trial, and these will be got through by July in addition to any new ones which may arise in the meantime.” Remembering that two judges were, by an exceptional circumstance—the Royal Commission on the Criminal Code Bill-prevented from attending to their ordinary duties, that a new Judge of the Bankruptcy Court is to be appointed, who will be expected to find time to sit in other divisions of the High Court besides his own, and that an economy of judicial strength in the constitution of Courts in banc has been resorted to, there seems not the slightest foundation for apprehension that the Judges of the Superior Courts will be unable to grapple efficiently with the cause lists.
The magnitude of the issues at stake, and the intricacy of the legal principles applicable thereto, are in no sense dependent upon the sum in dispute, and it is, therefore, impolitic to hamper the suitor in the selection of his tribunal by the imposition of a money test. Confusion will also arise from the divergent views entertained by those entrusted with the adjustment of costs as to the necessity for proceeding in the Superior Courts. For those, too, unendowed with the power of divination, it will be impossible to foretell whether, during the progress of an action, “questions of law or fact of sufficient difficulty and importance ” may or may not arise which would render a trial in a Superior Court expedient. By imperilling their costs the clause proposed will coerce plaintiffs into County
Courts, when their actions ought fairly to be tried at the Assizes or in London, or it will compel them to seek refuge in an alternative, which, on account of the expense and loss of time it entails, is perhaps equally unpopulara reference. On this ground the Attorney-General opposed a similar proviso in Mr. Cowen's Bill of last year. His words were : “In my opinion people ought not to be driven into the County Court, but they should be allowed to go there if they desire to do so;" that is, he would give the County Court an optional or voluntary concurrent jurisdiction with the High Court, but not an exclusive jurisdiction. Another argument against the proposal before us is that, by the Judicature Act of 1875, Order LV., Rule 1, the costs are left almost universally in the discretion of the Court, and therefore it is unnecessary to revert to this prohibitive policy. These were in all probability among the reasons which induced the Select Committee of last Session, and the Incorporated Law Society in their petition lately presented to Parliament, to express themselves as strongly opposed to any extension of the principle of protecting the County Court Jurisdiction by deprivation of costs.
It is proposed, by Sec. 7 of the Bill, to confer upon County Courts unlimited concurrent jurisdiction with that of the High Court, but where the limits imposed by the first five Sections of the Bill are exceeded, “such action or petition shall be removed into the said High Court by writ of certiorari or otherwise, as may be prescribed by the rules of the High Court, upon the application of the defendant to the action or the party opposed to the petitioner." Existing legislation has accorded far more extensive powers for removal than that now suggested,* and, as already indicated, the County Courts at present possess,
Either party may, by leave of a Judge of a Superior Court, and upon terms, remove a plaint into the High Court, no matter how small the amount in dispute (19 & 20 Vict., c. 108, s. 38 ; 9 & 10 Vict., c. 95, s. 90, and 13 & 14 Vict., c. 61, s. 16; 28 & 29 Vict., c. 99, s. 3. Judicature Act, 1873, s. 90).
by consent of the parties, unlimited concurrent jurisdiction with the High Court. It is, therefore, difficult to discover the precise advantages to be reaped by an alteration of the law in that particular. The witnesses examined by the Select Committee of last Session, unanimously testified to the fact that jurisdiction by consent is a privilege rarely exercised. For this moribund jurisdiction it is proposed to substitute that detailed in Sec. 7, but to what purpose ?
There is nothing to warrant the conclusion that suitors will more frequently avail themselves of the new than of the present proviso. On the contrary, the evidence, if anything, points the other way, and the consequence of the contemplated change will be that whilst at present the parties can mutually agree to accept the County Court as their tribunal, in future the plaintiff will be at liberty to inflict upon the defendant the additional trouble and expense of removing his case to a Superior Court. The Section as it stands is open to the further objection that the High Court is to prescribe the rules for the removal of the cause from the County Court. The growing tendency of late years to legislate by rules of Court is one that should be discouraged, firstly, because Parliament thereby delegates its authority, and, at the same time, shifts the responsibility on to the shoulders of the Judges, and, secondly, because rules create uncertainty and multiply judicial decisions. The faulty method at present employed for their promulgation is not unfrequently attended with inconvenience and annoyance. Only the other day, both Bench and Bar were placed in a state of perplexity by reason of the issuing of a new rule under the Judicature Act. It appeared that this new rule had not been communicated even to the learned Judges, and the Lord Chief Baron commented strongly on the circumstance, expressing his surprise and regret, that when orders were framed by a limited meeting of the Judges, means should not be adopted to have copies of them delivered at once to all the members