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By W. F. FINLASON, Editor of the “Common Law Pro

cedure Acts,” of “Nisi Prius and Crown Reports," and of “Reeves' History of the English Law.”


HE characteristic of the Chancery system is that in cases

which require evidence, and are not heard upon the statements in the bill, and the admissions in the answer, the evidence is taken first, and put in writing, and then the hearing takes place, with the fullest time for consideration and deliberation. This implies that, primarily and ordinarily, evidence is taken by deposition ; but then, in most cases, there being not much dispute as to the facts, this is a convenient and economical course ; for, as Lord Penzance remarked in the debates on the Judicature Bill, in 1870, in Chancery cases there is not usually much dispute upon the facts, and even where there is, it is not so much as to the particular facts stated, but as to the inferences to be drawn from the different statement of facts deposed to on each side, both of which are mostly true, with some allowance for exaggeration. The truth generally lies between them, and can generally be discerned by a discriminating and experienced judge, with full time for consideration. It is a function which requires such consideration, and is far better performed in that way by a single skilled judge, able to weigh, estimate, and adjust the evidence on both sides, than by a tribunal of twelve men, taken at random, amidst all the hubbub of Nisi Prius. Indeed, even at Common Law, this has long been so plainly perceived, that unless where there is an irreconcilable contradiction of testimony as to the particular facts in evidence, it has become usual to take the facts admitted or ascertained, and to put them into a written form for the

court to determine upon them, with power to draw inferences of fact, which is precisely the position of a Chancery judge on the hearing of most cases on evidence.

It is sometimes boasted by bigoted admirers of the common law system, that is, the bastard and perverted system now prevailing in courts of common law, which, for want of historical study of the subject, they fancy to be of common law origin, that it proceeds by Jury trial, and that chancery does not. This is an entire error, and yet in the latest disquisition on the subject by a learned writer on equity, it is so stated, that chancery does not try cases by jury. * This was only literally true, and not really so, even before the acts of Lord Cairns and Sir J. Rolt, allowing trial by jury in Chancery. For even before these acts, the court sent to be tried by jury cases fitted for such trial. And now that it tries such cases itself with juries, it is in no sense true that Chancery does not use such trial. Chancery uses trial by jury far more wisely than courts of law do, for it uses that method of trial in cases for which it is fitted, and not in others. That this is the true rule is shown by the latest legislation on the subject; that of the Divorce and Probate Acts, which followed the Scotch and the Chancery system in prescribing trial by jury in cases for which it is fitted, and leaving others to the discretion of the court. This is a far better course than prescribing that mode of trial, cumbrous as it is, in all kinds of cases, whether or not it is suited to them. In some cases it is suitable, in others it is not so; the Court of Chancery can always direct such a mode of trial if it is suitable, and the reason it does not do so more frequently, is that by means of the admissions in an answer, evidence is often dispensed with altogether, and that in cases where evidence is taken, the court can always, where it is necessary, have a witness orally examined before it, and, on the other hand, by determining the case itself, it secures the inestimable advantage, the absence of which Mr. Burke long ago pointed

* Mr. Haynes " Fusion of Law and Equity," Law Times, 1872.

out as the incurable defect of trial by jury, the incapacity for consideration of written evidence, and the necessary inability for any due deliberation upon a great body of evidence, arising from the necessity for giving their verdict before separating. This defect in trial by jury utterly unfits it for the determination of any case in which there is a great body of evidence. The excuse urged by all common law eulogists of this mode of trial, that the judge, in such cases, takes the burden of guiding and directing the jury, is only an admission of the defect; for whence the necessity for such direction, but from the necessary infirmity of the jury, and if the judge is to assume their guidance on the facts, what is the use of incumbering himself with their awkward aid, necessitating, as it does, an immediate determination of the case, very probably so clearly erroneous that he will be bound to disregard it ? It is strange that Common Law judges, who are constantly setting aside verdicts of juries as against evidence should persist in vaunting the value of a mode of trial they so set at nought! And surely the Chancery system is far more honest, as well as sensible, dispensing with trial by jury where it is not really necessary, rather than professing to use it, and then disregarding it as unsatisfactory. Vice-Chancellor Malins said he attached very little importance to the affidavits which had been read.” * The case was one of alleged interference with light and air, and the Vice-Chancellor observed : “In these cases, there is generally exaggeration on both sides. But, on the other hand, upon matters of fact not really in dispute between the parties, written evidence is often very convenient, and may save expense of attendance and examination of witnesses. One of the great evils of the Common Law system is the rigidness of its rule, which requires the personal attendance and oral examination of every witness to a fact, which often causes vast expense and delay, either in the attendance of witnesses in court, or their examination by commission.

Times, November 23.

The principles of the Court of Chancery on this most important subject were very well stated and illustrated by that able equity judge Lord Justice Giffard, in a case in which a bill was filed to restrain an alleged nuisance, and the defendant, after answer and evidence, desired an issue at law. The motion for the direction of issue to be tried in the cause was supported by an affidavit, which stated that since the interlocutory motion the defendant had been making alterations in the premises, by reason whereof the evidence previously filed on behalf of the defendant was rendered wholly inapplicable. Attention was also called to the great mass of evidence put in by the plaintiffs, who had served notice of motion for decree, to the necessity of calling scientific witnesses in answer, at a very heavy expense, and to the great conflict of fact in the case, which could only be satisfactorily disposed of by a jury on the spot after viewing the premises. The Vice-Chancellor having refused the motion the defendant appealed. On the appeal, he only asked that the first issue might be tried. Lord Justice Giffard said :

“The first question to be considered was the abstract point of law—viz., whether the defendant was entitled to ask for an issue at the present stage of the cause. In his Lordship's opinion this was a matter within the discretion of the Court. It would not do to lay down any hard and fast rule, and his Lordship thought that according to Sir John Rolt's Act it was quite competent for the Court which had to try the case, to choose that method of trying it which it thought best. That Act imposed on the Court of Chancery the duty of trying a case completely, but did not render it incumbent on the Court to direct an issue, or to require a jury, in cases where it would not under the old practice have sent the matter to be tried at law. The power to direct an issue, which was reserved in the Act, was meant only to apply to cases where it was essential that the trial should be held in the country, and that there should be a view of the premises by the jury. This construction of the Act, his Lordship thought, was quite consistent with the cases decided since it was passed. What, therefore, his Lordship had to determine was whether, in his discretion, this case should be sent to a jury. His Lordship thought that the present application was made at an unfortunate time. Such applications ought generally to be made either upon a motion for

an injunction or a motion to dissolve an injunction, or in some cases at the hearing. His Lordship was of opinion that a defendant might make the application at other times than those, but he must then be prepared to show almost to demonstration that the case was one which the Court could not itself try. The present application was made after the plaintiff had given notice of motion for decree, when defendant knew the whole of the plaintiff's evidence, which was of course a great advantage to him. Was there, then, any reason why the Court could not try this case itself? The Vice-Chancellor thought that there was not, and, in the face of his opinion, the Court of Appeal would be very unwilling to come to a contrary conclusion, unless it saw some overwhelming reason why the Court of Chancery could not try the case.

His Lordship could see no such reason here. He entirely denied that every legal question, or that every case of nuisance, ought to be sent to a jury. But it was said that there was something special in the locality in the present case. His Lordship, however, did not see why, if that were so, the Court of Chancery could not take it into consideration.”

But wherever the case appears to turn on disputed matters of fact, which depend on the credibility of contradictory testimony, best decided upon by a jury, the Court of Chancery prefers that it should be tried by a jury. One of the first cases decided by Lord Selborne was one of this kind. A policy holder had brought an action against an insurance office, which they sought to retain--desiring to have the case heard in Chancery, on the ground that the policy was obtained by fraud. The Vice-Chancellor, however, refused to sustain the action, and the Court of Appeal approved of his decision.* The Lord Chancellor said:

“The court was of opinion that no sufficient ground existed for disturbing the decision of the Vice-Chancellor. There was no question that the court had jurisdiction to entertain a bill in restraint of proceedings at law, especially in cases of fraud; and it might be assumed that a good equitable case was shown upon this bill, which, if proved, would entitle the plaintiff to relief in this court. But, on the other hand, it was peculiarly a case in which the court ought to be very cautious in exercising its discretion of interfering with the proceedings of the executor at law. When the term 'concurrent jurisdiction 'was used it did not mean that


* Hoare v. Bemredge, Times, November, 1872.

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