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the outset, at the very first step, the plaintiff is required to state clearly the specific facts upon which he grounds his complaints; and that then the defendant is obliged to answer upon oath-clearly and categorically—to interrogatories propounded to him on the case so stated. The result of this is, on the one hand, that the plaintiff is fixed to his case and the state of facts on which he rests it, and the defendant, on the other hand, is at once obliged to disclose all that he knows as to the truth of the matter in dispute. The result of this is that in consequence of the admissions thus obtained on one side, and the distinct statement of the case on the other, evidence in most cases is dispensed with, at all events beyond such proof as can be economically and easily supplied by affidavit, and in very few cases is there such a dispute as to facts as to require evidence to be taken. Thus, out of 1350 suits instituted by bill in one year, about 1100 would be heard on bill and answer, and only the remainder, about 250, on evidence. The effect of this, of course, is greatly to economize time, as in all systems it is the taking of evidence which occupies time and involves expense, and though at Common Law the trial itself, as it is oral, does not usually take a long time, cases have to wait a long time for trial. And trial is hardly ever final. This shows that the Vice Chancellor was right in his recent expression of opinion on the subject:—and our able contemporary, the Law Journal, overlooked the distinction between the nature of the cases in Equity, and at Common Law.
One great reason why the Chancery system is in many respects so much better than the Common Law, and would be infinitely more so were it fully carried out, is that it proceeds at once by prompt and direct interrogatories addressed to the defendant, and answered by him upon oath. Lord Eldon once said, the obligation to answer upon oath is the vital essential principle of Equity procedure. It is true that the principle of the Chancery system is not carried out, because the principle is öral interrogation that the defendant should be orally examined, that is, that his
answers should be oral, so as to afford no time for evasion and preparation. This, however, would be impossible without a far more adequate judicature; and, therefore, though it was the original practice in Chancery, it has for ages been unavoidably abandoned, and the answer is taken in writing. This, of course, affords an opportunity for evasion, and hence the Chancery system is not carried out. As long a time as possible is taken to answer, and the answer drawn by counsel in writing is as evasive as possible. Nevertheless, with all these disadvantages and drawbacks, so effective is direct interrogation that in many cases it dispenses with evidence, and in those in which it does not do so, it seems to show precisely what are the points which are at issue between the parties, and on which evidence will be required. And while, on the one hand, evidence can be taken in the first instance in writing, which is a great advantage where the facts stated are not disputed; on the other hand, where facts are in dispute, witnesses can be cross-examined orally before the judge himself, just as in the Court of Probate or the Court of Admiralty, where cases are constantly heard by the judge alone. That the procedure in Chancery is, or might be, far more effective and less dilatory than that of Common Law can be shown by many instances and practical illustrations. Thus a bill may be filed and answered in a month ; the answer may, by its admissions, dispense with further evidence, and the case may be at once set down to be heard on bill and answer, or the answer may show that the bill cannot be sustained, and the suit may be at once abandoned. In July, 1871, a bill was filed in the Court of Vice-Chancellor Malins. Before the end of the month it was set down for argument on demurrer for motion for injunction, and the demurrer being overruled and answer filed, and evidence to open fully the case was tried in the April following. * Again, one of the first cases heard by Lord Chancellor Selborne was one which will be a leading case
Simpson v. Ingleby. Times, April 28, 1872.
subject to which it relates (the law of nuisances in noise) and which had been heard by his Lordship in last Michaelmas Term. It had been heard before the Master of the Rolls, in last February, and the suit was not instituted until after October, 1870, less than two years before it was finally heard on appeal.* Yet, in the meantime, evidence to an enormous extent had been taken, and the case had undergone the fullest possible investigation. Suit instituted November, 1870, case heard on evidence in February in next year, and heard on final appeal in the following November. And this in a case of unusual difficulty, and contested with obstinate tenacity on both sides. Again, in another case heard by Lord Selborne, in last Term, on appeal, the bill was filed in June last,t before the end of next month, it had been brought before the Vice-Chancellor on a motion for injunction, and in November it was heard on appeal before the Lord Chancellor. Again, in another case an agreement was broken in August, 1871, the suit could not really be commenced until after the long vacation in October, and it was heard in May. I Again, an injunction suit and case of nuisance was heard by Vice-Chancellor Bacon, upon evidence fully taken within nine months after the filing of the bill.Ş In another ‘nuisance suit the bill was filed in June and heard in the same year before the Vice-Chancellor, and in the March it was heard on appeal beford the Lord Justices.ll. It is to be observed that the Court of Chancery is sitting, unlike the courts of law, nearly all through the year,
, and that an injunction can be moved for in a few days after a bill is filed. Thus, early in March last, an injunction was moved for before the Master of the Rolls, on a publication in the February, 1 towards the end of 1870 the proprietor
* Gaunt v. Fynney. Times, Nov. 15th, 1872.
Davis v. Park. Times, May 2nd, 1872.
Drewett v. Sutton, Times, March 7.
of the Eureka shirt filed a bill for an injunction, and it was heard and declared in that year, and appealed in March next year. The motion being finally refused until the hearing of the cause after evidence, on the ground that it then could be entirely disposed of before the Long Vacation, it was heard and finally decided on the evidence by the Vice-Chancellor, and then heard on appeal in June.t Again, on a nuisance case, the bill was filed in November, and on evidence in March. A couple of months may be ordinarily allowed to a defendant to answer in equity, s but so long a time is often obtained to plead at law, and there is this great difference that in equity the facts are disclosed in the answer, whereas at law they are never disclosed in the pleading. Two consequences of great practical importance follow from this in favour of Chancery pleading: first, that if a party desires to take the opinion of the court on a question of law arising on the facts, he can do so by demurrer, whereas at law the real facts are rarely, it has been seen, stated ; and next, that if, on the other hand, the parties desire to go into evidence on any matters of fact not admitted between them, these matters are clearly defined on the face of the pleadings, which is never the case in pleadings at Common Law. Hence, as Sir George Jessell observed the other day, a demurrer will really, in court of equity, raise a question of law between the parties, upon the real facts as stated and admitted, in the most simple and economical manner. And unless upon the face of the bill there is no case to call for an answer, the demurrer will be overruled, and the defendant will be called upon to answer on the merits. He may, indeed, plead, but then a plea in equity, unlike a plea at law, must be a clear bar to the suit, on some short decisive ground, admitting of direct and positive proof, and if this proof be a fact not really in dispute, it can
* Ford v. Foster, Times, March 3, 1870.
+ Ford v. Foster, limes, June 11, 1872. Attorney-General v. Mayor of Leeds, Times, March 3, 1871. $ Browu v. Wales, before Vice-Chancellor Wickens, Michaelmas Sittings.
be supplied by affidavit without the expense and delay of trial or taking of evidence, and the case is virtually at an end, or argued on demurrer to the plea if there be a doubt as to its legal validity. But unless it is arguable it will be simmarily overruled, and the defendant will be called upon to answer. And in most cases this is the only course open to a defendant in equity to a plain direct answer to the merits upon oath, and by way of a statement of facts. It is not to be wondered at that such a procedure should be so infinitely more effective than the artificial and antiquated procedure of the Common law. But, as Lord Eldon said, the vital essential principle of the equity procedure is the obligation to answer upon oath, and it is melancholy to think that the Judicature Commissioners, casting aside the experience of ages, should have recommended the abandonment of this vital principle ! And this, in opposition to the opinions of the wisest and ablest judges at Common Law, as well as of equity, a Denman, as well as an Eldon.*
Moreover, in cases which require promptitude, as injunctions, of which alone nearly 150 are issued in the course of a year, the proceedings in Chancery are so speedy that they allow a degree of promptitude unknown at Common Law. In a few days, it may almost be said hours, an injunction can be obtained in a case which really requires it. Even in ordinary cases, which do not require such extraordinary speed a case can be brought before the Court in a few days—say a week or two. Thus, last summer, a foreign commodity made, as was alleged, in imitation of an article of the plaintiff's manufacture arrived here for sale towards the end of one month, and at the end of the first week of the next month the case was heard. The goods arrived for sale on the 26th June, and the case was heard on the 6th July.t It would be hardly possible to attain a higher degree of speed than this, unless the natural system of oral application
See Sir J. Arnould's admirable life of Lord Denman, just published. | Anglo Swiss Company's ease, Court of Vice-Chancellor Malins, Times July