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And, for limited purposes of urgent necessity, the Court of Chancery professes to be always open. Indeed, with some modifications, I think the Court of Chancery offers a good model on the lines of which the Courts of Common Law may be reformed.”
He added other very serious evils connected with this Court, to which it is very necessary that public attention should be directed, arising from the closing of the offices in the long vacation, and other similar causes, but these are very easily remedied. These are but blemishes on a good system, but that of Common Law is essentially erroneous. Innumerable illustrations of the truth of this could be adduced from the reports in the Times. Speaking generally, a suit in Chancery can be carried through its various stages of first instance, appeal, and final appeal, to the Lords in little more than a year. Thus, the case of Wotherspoon v. Currie, relating to the Glenfield Starch label, was heard by Vice-Chancellor Malins in February, 1870, it was heard by the Lords Justices on appeal in July, and it was finally decided in the Lords in April, 1871. Again, the case of Clowes v. Hogg, relating to London Society, was heard before the Vice-Chancellor in December, 1870, and was heard un appeal before the Lords Justices in February, 1871. Numerous and similar instances could be furnished during the last two or three years.
It is to be observed that there is this distinction between appellate jurisdiction in Chancery and at Common Law, that in Chancery a party may carry an appeal on a question of law before the case is heard in the evidence, or may carry on both proceedings simultaneously. At Common Law he cannot go into a Court of Error until he has tried the issues of fact; but in Equity it is otherwise. Thus, not long ago, this case occurred in Chancery, in which it will be seen that the Court of First Instance heard the case and granted relief while an appeal was pending on the law.* The plaintiff filed his bill for an injunction and for damages. The
* Colt v. Forte, before Vice-Chancellor Wickens, Michaelmas Sittings, 1872.
first question which was argued at length on the demurrer, was as to the validity at law of the covenant. The ViceChancellor held the covenant to be valid, and overruled the demurrer. The defendant appealed to the Lords Justices, who upheld the Vice-Chancellor's decision, and, as will be seen from the judgment, the case will now be heard by the House of Lords. The case now came before Vice-Chancellor Wickens on the hearing, and the question principally argued at the hearing, and in reference to which the defendant was cross-examined, was whether he was bound by notice of the covenant. From the evidence it appeared that when he had taken the contract from the agent of the society he had acted without the intervention of a solicitor, and had abstained from making any inquiry as to the title-deeds. The invalidity of the covenant was also insisted on. The ViceChancellor in giving judgment said that on the question of the validity of the covenant he was bound by the opinion of the Lords Justices that the covenant was good ; nor had he any doubt in his own mind, though he did not consider it necessary for him to say so, that their decision was right. That being so, the case was hardly seriously arguable. There was one point to which he would refer to make a suggestion in the interest of both parties. It had been stated that the judgment on the demurrer would be brought before the House of Lords by way of appeal. His present decision would, of course, also be the subject of an appeal to the House of Lords, and he would suggest that, to save the expense of two separate appeals, both parties should agree to combine the appeal from both decisions in one case. Counsel on both sides thanked the Vice-Chancellor for the suggestion, and said that they should advise that it should be acted upon. The convenience of such an arrangement is obvious, but it could not have been possible at Common Law.
IV.-MICHAEL MAS TERM AND SITTINGS.
THE proceedings of the Courts during the legal year
which commenced Michaelmas Term, are of peculiar interest, because they are the last that will take place under the old judicial system. They are of interest, as affording an obvious opportunity of recording the proceedings of a legal year under the old system with a view to future review and comparison with the new judicial system about to be inaugurated. And on that account we propose to take advantage of this opportunity, and to present in a condensed form a review of the proceedings in all the Courts of Common Law and Equity, Probate and Admiralty, Divorce and Matrimony, Bankruptcy, and, lastly, the Ecclesiastical Courts and the Privy Council, including trials, and sittings in banco, courts of first instance and courts of appeal, so as to present at one view the actual working of the whole of our judicial system as it still exists.
This will be the best possible introduction to and accompaniment of a series of papers we propose to commence upon the operation of our new judicial system. Judgment, said Dugald Stewart, is the result of comparison, and the comparison of the new system with the old will be the best possible means of understanding the effect of the new. This, however, is not the only object to be attained by this review of the proceedings of the Courts during a Term and its attendant sittings, which we shall accompany by similar summaries of the business of the different Circuits at every Assize. The nature, character, and amount of judicial business, civil or criminal, will thus be presented at one view to the mind; and opportunity will be afforded of noticing cases of particular interest on account of the novelty or nature of the legal questions or principles involved. And occasionally the reports will be supplemented by special reports of cases of importance unreported or imperfectly reported. Particular attention, moreover, will be directed to
such cases as illustrate the nature of different jurisdictions, or of different modes of procedure, or the operation of rules of practice. And thus these papers will afford the only means of surveying, so to speak, the whole field of our judicial system, vast and varied as it is, as a whole, on one view, as it is exhibited in actual working and operation. It is only in this way that we can be prepared for the operation of a new system which is to embrace the whole of these various courts of jurisdictions and to combine in one consistent system parts of various methods of procedure. In presenting these illustrations of our judicial system as it is its anomalies will be unavoidably exhibited, and one of them occurs at the very outset in commencing the review of the proceedings of a Term, and it is this. Naturally, in the arrangements of the courts, the higher courts, the tribunals of appeal would be taken first, but during Term, at Common Law, no Courts of Error are sitting, and so they must, to preserve the order of time, be postponed to the last.
The Judicial Committee of the Privy Council demands the first and highest place, as the most ancient, the most excellent, and the most extensive in its jurisdiction of any of our Tribunals. Constituted as it is of the most eminent and experienced judges, and the ablest jurists of the country, and forming the Supreme Imperial Courts, it is the model of the Court of Appeal which is to be formed under the new judicial system, (adding to it a greater degree of permanence), and it is, therefore, of the highest interest. During the recent sittings, the members who usually sat were Sir J. Colville, Sir Baron Peacock, Sir Montagu Smith, Sir R. Collier, and Sir Lawrence Peel ; but Lord Penzance sat in several cases. The committee resumed their sitting on the 4th of November, after the Long Vacation, with a list of twenty-three appeals and two patent cases. The first cases taken were petitions for the extension of patents, in which this committee exercises a kind of function, not exactly judicial, but like that originally exercised by the King's Counsel in advising grants, to which it would then be the duty of the Chancellor to affix the seal. The validity of the English patents is determined in the courts of Law and Equity. This very term, the Court of Appeal in Chancery had to determine on the validity of a patent, with reference to novelty, and held it invalid (Smith v. Buller). Of course, as to the judicial appeals, most of them, as usual, were from India. Last Term an important appeal from the Isle of Man was heard at these sittings before a strong committee, consisting of Lord Penzance, Sir J. Colville, Sir M. Smith, and Sir R. Collier, on January, 1871. The plaintiffs had filed their bill in the Court of Chancery of the Island, complaining that operations of a mining Company had dried up their water springs, and in February, 1871, the court granted an injunction restraining the company from working their mines until they had deposited a large sum of money to meet claims for damages. The company, by their answer, denied that their works had caused the spring to be dried up, and also denied their liability, relying on the case of Chasemore v. Richards, in the House of Lords, which decided that such damage was too remote to found a legal claim. In June, 1871, the court decided in favour of the plaintiff's, directing an issue to ascertain the damage done, and meantime continuing the injunction. The mining company appealed, and urged that the Court of Chancery in England would not have granted such an injunction. It would, perhaps, be better if an Equity Judge had been on the committee, but the substratum of the case, no doubt, was a legal right. It proved a case of some difficulty, and the committee took time to form their opinion thereon. In the result they reversed the decree as to the injunction.
Most of the appeals to the Privy Council are from India, and they are of great variety and often of great magnitude. One case was heard at these sittings which had been pending 15 years, and involved property worth an enormous sum. The original judgment given in 1860, by the principal, Sudder Ameer, that is a native provincial judge, and in 1863 the High Court of Calcutta affirmed the judgment. In