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each party could choose which jurisdiction he pleased; he must come either to law or a Court of Equity, according to the exact relief he might require. The assurance company could only come into equity before being sued at law, and ask to have the policy delivered up to be cancelled, while the executor had a right to bring his action at law to compel payment of the policy money, under the contract. What the one party claimed as his right at law would constitute his defence in equity, and what the other claimed as his right in equity would constitute his defence at law; and in such a case the whole matter could only be brought in its integrity under the jurisdiction of equity by terms being imposed upon plaintiff at the price of the interference of this court, as, for instance, by his consenting to give judgment at law."
Let it be borne in mind that a Chancery judge can always, where the facts are in dispute, have the witnesses examined and cross-examined before him in court, and this is often done. Thus, in 1871, a nuisance case was heard before Vice-Chancellor Malins, in which this course was pursued. It was a bill and information filed against the Local Board for the district of Bishop Stortford, asking for an injunction to restrain the defendants from permitting any of the sewage or any water polluted with sewage or other noxious or offensive matter, to pass into the river Stort, in such a manner as to render the water of the river unfit for use, or a nuisance to, or injurious to the health of, the plaintiff, who rented a mill. The tenant was examined in court, and numerous affidavits were read in support of the allegations, and evidence given on both sides, the result being that the ViceChancellor was of opinion that the statements in the bill were grossly exaggerated.
The great superiority of the Chancery system of trial as it now exists, with the advantage of uniting both written and oral evidence, and the immense advantages of a superior judge, a single mind, and of time for consideration and deliberation, must be manifest to any unprejudiced mind. The rude system of trial by jury, be it observed, never was intended
Times, March 9, 1871.
for trial on evidence at all; even in early times when issues were simple and evidence short. And its incurable defect, as was observed by Mr. Burke, is the necessity for prompt decision, and the want of due time to digest and consider a vast mass of evidence. This is a defect which, of course, becomes the more marked in proportion to the length and perplexity of the case, and Lord Mansfield long ago observed that in such cases juries often miscarried. But, in the Court of Chancery, with a single judge, able to give continuous attention, aided by written and oral evidence, by written evidence on facts not in dispute, and with ample time for consideration, the longer the cause the more intricate the case, the more the superiority of its procedure appears. Take as an illustration the following case.* The former directors of the National Bank, jointly and severally liable for an alleged breach of trust in employing the money's of the bank in discounting promissory notes of the Contract Company upon the guarantee of Lafitte and Co., which company was, in the year 1865, in process of formation, and was, as well as the Contract Company, subsequently ordered to be wound up.
(The proceedings, of course, were most protracted and intricate.) And the Vice-Chancellor said that this involved considerations of such great importance as to the obligations of managers of companies, and of directors that his giving judgment now is out of the question. He must carefully consider all the evidence, which was of great bulk, and in the meantime should like to have the various documents, which were referred to in the course of the argument, supplied to him. The case, therefore, stood over for judgment. Now a jury could not possibly have dealt satisfactorily with such a case, unable to follow the mass of evidence, nevertheless compelled to decide upon it at once.
And, again, another important element in the Chancery method of trial by judge, which is also that constantly used in the Probate Court, is, that not only has the judge
* Paker v. Lewis, Times, December 17.
ample time to weigh and consider the evidence, but he also is expected to adduce the grounds and reasons for the conclusions he comes to. This has two important results; first, that this compels him closely to consider the reasons for his conclusions, and next that if they are erroneous, they can be reviewed and set right by a superior tribunal. It is far otherwise with a jury, who not only have to decide at once, but give no reasons for their conclusions, so that the court cannot see upon what grounds they have proceeded, and cannot even see whether they were really unanimous, for half of them may have gone on one ground and the other half upon an entirely different, perhaps inconsistent ground. Thus in cases of any complication the decision of a jury is really a blind leap in the dark, and a mere game of chance played blind-folded; compare this method of proceeding, in which no one can tell whether they are right or wrong, because no one can knowon what grounds they have proceeded, with the clear and luminous conclusions upon the facts of, experienced and practised judges like Lord Justice James, or Lord Cairns, or Lord Selborne. Let it be borne in mind that the Equity judges may have all the advantages of a jury in respect of oral-examination and cross-examination, and seeing and hearing the witnesses, with the immeasurable advantages of vastly superior intellect, practiced and experienced faculties, close and continuous attention, unity of mental application, ample time for consideration. Let any sensible and intelligent man consider whether it would not be infinitely more sstisfactory to a suitor to have his case decided on the facts by skilled and experienced judges, with all the advantages of ample time or consideration, rather than by a jury, taken hap-hazard, amid all the hurry and hubbub of sittings or Assizes, and called upon to decide at once.
Appellate tribunals must of necessity, under any system, judge of the facts on evidence reduced to writing, whether taken orally or not. It is so even in the common law system of trial, under which new trials are moved for on the judge's notes, usually very imperfect. It is impossible to have an
appeal, properly so called, upon the facts, in any other way, for if the witnesses were orally examined again, as is the case at Quarter Sessions, or on a second trial, it would not be an appeal, but a rehearing, or a new trial; and it would be impossible to exclude additional evidence or to ensure the repetition of precisely the same evidence, neither more nor less. But an appeal, properly so called, must be on the same evidence. And for this, the Chancery system affords very great facilities in the evidence being all, however taken, reduced to writing, for it is then fixed in form, and available for any appeal intermediate or final. And it is a great advantage to have the means of submitting the whole of the evidence in a case in a form full and accurate, and not meagre and imperfect, to the consideration of superior judges upon appeal, and it enables them to give it their most ample, and deliberate consideration, and form clear conclusions upon it. It is true they do not see and hear the witnesses, but so neither does a court of law when it upsets a verdict on imperfect notes of the evidence, nor does the Privy Council when it reverses a decision of the Admiralty. And, as already mentioned, it is virtually impossible to reproduce oral evidence orally.
To be continued.
The SPRING CIRCUITS.-The judges met on the 15th ult., in the private room of the Lord Chief Justice, and chose the forthcoming spring circuits as follows, viz. :-Home—the Lord Chief Baron (Sir F. Kelly) and Mr. Justice Lush. Oxford—the Lord Chief Justice of Common Pleae Lord Coleridge) and Mr. Baron Cleasby. Northern-Mr. Justice Denman and Mr. Justice Hooyman. Western-Mr. Justice Keating and Mr. Justice Grove.
Norfolk-Mr. Justice Blackburn and Mr. Justice Brett. Midland-Mr. Justice Archibald and Mr. Baron Pollock.
North Wales-Mr. Baron Pigutt.
South Wales-Mr. Justice Quain. The Lord Puef Justice remains in town.
V.-CHANGES IN THE JUDICATURE. THE THE retirement of Baron Martin and the appointment of
Mr. Amphlett mark most emphatically the change in our judicial s; stem. Before the passing of the Judicature Act no such change would have been possible, and, on the other hand, that measure rendered such a change at once desirable and practicable.
So long as there were courts occupied only with the cases which come within the narrow range of the common law, that is, the cases tried at nisi prius, the judges appointed to those courts were naturally taken from the practitioners in those courts, and were chosen chiefly for their success at nisi prius. But when, by the Judicature Act, these courts became divisions of a larger court, in which all jurisdictions were blended, and more especially that of equity-one branch of which, that of bankruptcy, is to be vested in the Exchequer division-the choice of judges not only need no longer be restricted within the same narrow range as before, but could not properly be so, if the success of the new judicial system had to be secured. And there is, it is to be added, peculiar fitness in appointing an Equity Judge to the Exchequer, since that court, law, and equity, have always been administered, and, in the revenue jurisdiction, they have always been united.
In the time of Mansfield and Hardwicke the leading men practiced in both jurisdictions, and knew the necessity of the Cquitable system, and so, when judges, they sought to work the two systems more in harmony. Under the modern system the jurisdiction became more separated and estranged, and so did the practitioners in each; and hence the common law men, seeing less of equity, and its superiority, became more and more blindly bigoted to their own rude and ineffective procedure. This change for the worse advanced more rapidly after that absurd and mischievous