« PreviousContinue »
fide purchaser for value, without notice. Here, said the Vice-Chancellor, the maxim stops, nor is there any other difference between the rules of Equity and Common law on such cases.
This is a case which well deserves to be studied by those who have cloudy notions as to some necessary difference or even antagonism between Law and Equity.
COURTS OF COMMON LAW.- The judges of these courts are not, like those of Chancery, judges of one court though sitting separately, but constitute different and distinct courts, originally, no doubt, with different kinds of jurisdiction, Crown, Revenue, and Common, the two former still subsisting in the Queen's Bench and Exchequer, but reduced to such a narrow compass that the business peculiar to those two courts barely occupies more than two or three days. Under the Justices Summary Jurisdiction Act the appeals go to all three courts, and so as to County Court cases of prohibition.
In the Queen's Bench the proper Crown business was very small, and did not occupy the Court more than a few days. The court sat in two divisions, under Lord Hatherley's Act, on account of the Tichborne case, which being a trial at bar, is tried in banco. There was a motion in the other division to extend the time for the trial of the case, and before the judges who are trying the case a question was raised as to the effect of an adjournment, which had been allowed to the prosecution for the purpose of procuring evidence in reply. But as the question would be raised on the record, by writ of error, the court would not disavow their own order, and, moreover, they intimated that it had been made on peculiar grounds, as unprecedented as the order itself; the counsel for the defence had misled the prosecution by a misstatement, the effect of which was that they had brought the wrong witnesses from beyond seas, and had been prevented from bringing the right witnesses, and there can be no doubt that this would amply justify the order made. There were motions in three highway indictment cases, in one of which a question arose as to the effect of discharge of
a jury on some of the counts. (Queen v. Oastler). In another case, a fine of £50 was inflicted (Queen v. Masters. In a third case the question arose as to the effect of an order under an Enclosure Act to stop up a highway. (Queen v. Alnwick). Most of the Crown cases were rating cases, which, of course, are really civil cases. In the case of St. Thomas' Hospital the court reached the reductio ad absurdum, which was the necessary result of the decision of the Lords in the Mersey Dock Company case, and held a hospital rateable to the poor! (St. Thomas' Hospital case). In a case, under the Local Government Act, the court held that the certificate of the surveyor was conclusive only as to the amount payable by the owner for paving of a street, not as to its being repairable by the parish. (Hesketh v. Local Board of Atherton), In a School Board case they held that overseers cannot, as an objection to the rate, raise the question as to the excess of school accommodation provided, which can only be raised on the audit. (Shelly School Board v. Overseers of Shelley. Such were the Crown cases, in the course of Term, in the Court of Queen's Bench. In all the courts the cases on appeal from justices summary jurisdiction occupied two or three days. The rest of the business was civil.
So in the Court of Exchequer, two or three days sufficed for its proper or peculiar business, that of the revenue, for it may be observed that nothing can be more anomalous and absurd than the diversity of jurisdiction, provided for determining questions of revenue. In some species of taxes questions are decided on appeal to two judges sitting secretly and deciding without argument! The proper tribunal for all such questions is this ancient court, originally erected only for the decision of questions of revenue. The present will be the last year in which the First Lord of the Treasury, representing the Lord Treasurer, (an officer never appointed since the time of Harley), and his assistant, the Chancellor of the Exchequer, will be members of the court. Mr. Gladstone holding both offices, sat here for the last time in that capa
city, on the morrow of St. Martin, when the sheriff was nominated. The Lord Chief Baron and Barons Bramwell, Pigott, and Pollock, sat to hear revenue cases, and one case illustrated the necessary connection between law and equity in revenue cases, for it was a claim to probate duty, on a devise of land, on the ground of the equitable doctrine of “conversion," as it had been devised to be sold, and though the trust had failed, the court held that the property was indelibly impressed with the character of personalty, by virtue of a legal fiction, adopted by Courts of Equity only in furtherance of trusts. (Attorney-General v. Leman).
As already stated, in all the courts of Common Law, the business is almost entirely civil, composed of such private suits as have a common jurisdiction. The exercise of this jurisdiction, unlike that of courts of Equity, is rarely final. On a hearing in Equity there is a final decree, subject only to appeal. It is otherwise at law, for first there is the trial, which is hardly ever final, and in most cases tends to motions to review the verdict, or on resevations of a point of law, and there is first the rule nisi, and then the hearing, and then there is often a second if not a third trial, possibly with the same result, so that a case in a court of law seems always going on and never at an end, and comes, again and again before the court, although the issue is generally short and simple, and turns usually on a question of fact. Hence it is that in a very small proportion of cases which come before a court of law is there any final decision of a legal question, for in all motions after trials, unless the point is not arguable, there is only a rule nisi on an ex parte application, and it is only on special case, or reservations of a point, that the decision is final, and only on a special case is it so on the first hearing. The first four days of Term, in each court, are occupied with motions for new trials, generally on questions of fact, almost always either on the questions of fact, or the application of the known law to the particular facts. Thus, last Term, for the first few days, in each court, there were only motions, and for the most part for new trials, and
chiefly on evidence, or the practical application of law to the facts of particular cases, and the greater part of Term was occupied, as usual, with the discussion of similar questions. The Court of Queen's Bench, for several days, was occupied with motions for new trials, in which Mr. Justice Blackburn, Mr. Justice Quain, and Mr. Justice Archibald sat in Banco, motions for new trials occupied most of the four first days; many of them on the ground that the verdicts were against evidence, or for excess of damages. It was observed, however, that as regards motions on the latter ground the court was less ready than courts have been to grant sules. Thus when an application was made for a rule nisi to reduce the damages in a case in which a jury had given £1,575 against the Lancashire and Yorkshire Railway Company on a claim for compensation, the court held that juries were the proper judges in the first instance in cases of this kind. Mr. Justice Blackburn remarked that although he should not have given so large a sum, yet, when he considered the whole of the circumstances, he could not say that the jury had so obviously transgressed the bounds of prudence as to require correction. And the rule was refused. So in a case of breach of promise of marriage the Northern Circuit in which jury had given large damages (£1,700) the court refused to grant a rule to reduce the damages, observing that it was for the jury to estimate the damages. This is sound sense and good law, and nothing can be more contrary to law and good sense than judges spending their time in reviewing assessments of damages given by juries, or the verdicts of juries, upon facts. Yet a large portion of their time, in this as in other Terms, was occupied, and paradoxical as it may appear, for the most part in cases of fact, chiefly personal torts, accident cases, and the like, turning entirely on questions of fact peculiarly for the jury.
As usual, in the Courts of Common Law, a large portion of the Term was occupied with applications for new trials, or to alter verdicts, and the greater portion of the Term was taken
up, either in discussing questions of fact, or in indeterminate discussions on mixed questions of law and fact. Comparatively few cases were heard and determined on demurrer, or "special" case, or on points réserved, and even as to these the decision was often not final, for the case was usually reserved with power to the court to draw inferences of fact, that is, in effect, to determine the question of fact. Thus, in one case, the question was whether a ship which had been injured through grounding upon an anchor in harbour had been injured through the negligence of the Harbour Board. The case stated that there was negligence in not fixing a buoy to the anchor, but left it to the court to say whether there was negligence in not taking care to keep the anchor down, and whether the accident arose from that cause or from want of a buoy, both pure questions of fact. And it was contended on the part of the board that the accident had not occurred through the want of a buoy, the only negligence stated in the case. Thus, one court was occupied a day and a half in considering whether a ship had been injured through one or other of two causes ! (Joliffe v. The Wallesley Local Board).
So, in another case, where a railway passenger had been injured in getting out of a train drawn up beyond the platform, when the vexed question was raised whether the stopping and calling out the name of a station is not an invitation to alight, a question which some judges hold to be one of fact, others one of law : of these latter, some take one view of the question, and some the opposite view. It happened that the judge who tried the case belonged to the latter class, and took the view adverse to the passenger, and so he directed a non suit, and reserved the question, and the Court of Common Pleas granted a rule Nisi to have the question argued, though it is one eminently fitted for a jury. (Weller v. The London and Brighton Railway Company).
It is to be observed that where the judge who tried the case agrees in the verdict of the jury, it is hardly ever disturbed, and thus in a case moved this Term in the Common