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is allowed for affidavit, and in no court can it be safe to exercise a mandatory jurisdiction, such as prohibition, mandamus, or injunction, without some written statement
In courts of law, writs of prohibition or mandamus, however, only issue on cause shown, which involves some degree of delay, but in the Court of Chancery the injunction may be issued at once, on ex parte application, on a proper case, which requires no more than simple statement and verification on oath. If the natural system of procedure is not carried further in Chancery it is only because, from the extremely moderate strength of the judicature, it is utterly impossible.
A very remarkable case, illustrative of the difference between the superiority of Chancery and Common law systems of procedure occurred at the London sittings, 1872, and which was then reported in the Times.* The case arose out of a transaction which had occurred nearly ten years before, and which had been nearly that time in litigation at law and in equity; and it is one eminently illustrative of our judicial system. In 1863 the plaintiff, Mr. Plant, was negotiating with the late Duke of Newcastle for the lease of a colliery; and, under the impression that he could obtain the colliery, invited a Mr. Daniel to join with him, who assented, and agreed that if Mr. Plant could obtain the lease he should share the proceeds and have part of the profits. In the result he effected this object, and the lease was to Daniel alone, who commenced the formation of a company with the view of selling the colliery to them. Meanwhile, Mr. Plant was anxious to make sure his right to his share of the proceeds, and he employed Mr. Pearman, a country attorney, as his attorney for the purpose. Mr. Daniel, however, repudiated the claim, asserting that, after all, it was he and not Plant who had really obtained the lease. Thereupon a suit in equity was commenced against Mr. Daniel and the company to enforce Mr. Plant's claim,
• Plant v. Pearman. See Times, 13th Dec., 1872.
and in September, 1864, the bill was filed. In November Mr. Daniel filed his answer, from which it appeared that the negotiation had been put an end to, and a new company had been formed with the same object in view, so that suit was at an end. With this new company Mr. Daniel proceeded to negotiate the sale, and when the plaintiff, in December, 1864, discovered it, he proceeded to commence a suit against Mr. Daniel and the second company. In the meanwhile, however, the negotiation for the sale proceeded, and early in January, 1865, before the bill was filed, and the company having no notice of Plant's claim, the sale was completed, and the money was handed over to Mr. Daniel. In the same month of January, but after the payment, the London agents of Pearman gave the company notice of the claim of his client, Mr. Plant, but it was too late, the money was already paid over, and he was left to his remedy against Mr. Daniel. That remedy he pursued.
The suit was prosecuted, and in another month the answer upon oath was obtained which virtually, so far as the company was concerned, disposed of the suit. In February, 1865, the answer came in, denying the grounds of Mr. Plant's claim, and declaring that so far as regarded the company they were blameless, having had no notice of the claim. Mr. Plant now, in April, 1866, filed a “supplemental” bill. The answer disputed the grounds of his claim, and evidence had to be taken. Hence, and owing to the crowded state of the cause lists in Chancery, the cause did not come to a hearing until May, 1868. It was heard before the Vice-Chancellor, and he decided against Mr. Plant. He, however, appealed ; and so speedily are appeals heard in Chancery, that, in November in the same year, the case came before Lord Cairns, who reversed the ViceChancellor's decision, and gave a decree in favour of Mr. Plant, that he was entitled to four-tenths of the purchase money, subject to deductions. Then, however, came the question of accounts, Daniel setting up various deductions from the amount which Mr. Plant would be entitled to
receive under Lord Cairns' decree. The accounts went in due course to the Chief Clerk, and in the result, in the course of 1869, he gave his certificate for a sum of nearly £9,000, which, with costs, would come to nearly £10,000. Here, therefore, were three successive Chancery suits all brought by the pleading very soon to issue, and two out of the three disposed of without further proceedings. In the other, whatever delay occurred was clearly owing to the pressure of business and the inadequate strength of the judicature and judicial officers. Very different was the case at Common Law, where the delay was clearly owing to the procedure or the unfortunate arrangment of the judicature. The party sued in Chancery having died bankrupt, an action was brought against the attorney for not registering the suit as lis pendens. The action was commenced in December, 1869, and the declaration stated, in the usual form of Common Law pleading, that the defendant, the attorney, “though requested to do so by his client,” had “neglected” to register the suit as pending. Thereupon, in the first instance, the defendant denied that he had been so requested, and the plaintiff demurred to the plea as immaterial, on the ground that whether requested or not it was the attorney's duty to do it. The defendant, on his part, denied any such duty, and on the question of law thus raised the case went before the court; that is, it went into the “ Special Paper," as it is called, and there being only a few “ Special Paper" days in the Queen's Bench in each Term, the case did not come to be argued and decided until January, 1872. The Court then determined the point of law in favour of the plaintiff, so far, at least, that it appeared that primâ facie there was a liability. But then they pointed out that facts were not stated showing it was the duty of the defendant to register the suit, and that he neglected such duty; and that there might be facts and circumstances in the case which would show that there was no such liability, either because there was no such duty, or that it had not been neglected. Therefore, in order to try what the real
facts were, the cause was set down for trial on the issue of fact, and in June came on to be tried, just three years after it was begun. It came on for trial on the pleadings, which, as the Court said, did not disclose the real facts and circumstances; and the very object of the trial was to ascertain what they were, and it came on for trial without either party being aware of the state of facts to be relied on by the other. The contrast, in this respect, between the Chancery pleadings in the case and those in the action at Common Law was most striking. In the former, the facts relied on by the plaintiff were set forth succinctly and clearly in order of time, and the answer stated; in like manner, and upon oath, the facts relied upon by the defendant, so that at once it could be seen whether any facts really were in dispute, and if so, what they were, and upon what points evidence would be required : whereas, in the action, the declaration merely stated a conclusion of negligence, and the plea denied it; and both parties came down to trial, neither knowing what was really the case of the other, or whether any facts were in dispute between them or not. The case in the action turned entirely on what had taken place between the plaintiff, as the client, and the defendant, as his attorney, in 1864, on which everything depended, of course, as to the alleged neglect. The examination and cross-examination of the plaintiff occupied several hours, in fact, the greater part of a day; and it was manifest, from the course it took, that the case in a great degree may depend upon facts and circumstances—many of them things said in conversations which occurred eight years ago. The defendant's evidence supported the case, and the plaintiff's counsel, finding that the case was likely to go against him was glad to yield to a verdict for the defendant, with some conditions in his favour as to costs. Yet it might be that the plaintiff's hesitating expressions in reference to the observations imputed to him, more from their being so suddenly sprung upon him, that, in reality, he did not like to contradict them peremptorily without some reflection. And it is certain
that if the other party had been examined, as he would have been in Chancery, soon after the suit was instituted in 1869, both parties would have been in a fairer position and more likely to recollect the truth. But in any view the contrast between the Common Law system and the Chancery must be allowed to be very favourable to the latter. This case attracted the attention of Mr. Harcourt, and elicited from him these observations in the Times :
“ This very morning my eye falls upon a cause being tried in the Guildhall, of which your law reporter gives the following particulars. The case began with a Chancery suit in 1866. 'Owing to the crowded state of the cause lists in Chancery, the cause did not come for hearing till 1868. The case was appealed and decided with sufficient expedition. The certificate of the Chief Clerk could not be obtained till 1869. Now, however,' writes your reporter, 'ensued the very usual result of a protracted litigation, that the party succeeding found that his success was fruitless, for in the meantime the defendant had become bankrupt, and afterwards died. The plaintiff then had to seek his remedy against another party. The action was commenced in 1869, three years ago. The pleadings were demurred to. Demurrers go into the Special Paper. There being only two or three Special Paper days in the Queen's Bench in each Term, the case did not come on till January last.' Thus it took two years to determine what question should be tried. And another elapsed before it could get to trial. The case is now being tried; when it will be finally concluded no one can even guess. Thus this unfortunate man has been more than six years steadily at work both in the Court of Chancery and the Courts of Law, and who can say when he will get out of either? It is to be hoped that his wealth and his patience are alike inexhaustible.”
It will have been seen that the ill-fated man was glad to compromise the matter. The case strongly illustrates the superiority of the Chancery system, and Mr. Harcourt went on to observe :
“As far as I understand the matter, it appears that in respect of the despatch of judicial business the Court of Chancery is far in advance of the Courts of Common Law. This is simply due to its better organization. The ViceChancellors and the Master of the Rolls sit more continuously, and there is practically a Court of Appeal, in the shape of the Lords Justices, much more constantly at work.