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the meantime some of the parties had died, and others were added, and there were several revivals of the suit, and owing to heavy arrears there had been considerable delay in this court. Consequently the appeal was only heard at those sittings. Sir Barnes Peacock, in delivering the judgment of the committee, said :
“ The rule on which their Lordships usually acted was not to overturn the decision of the Lower Court when that decision had been affirmed by the High Court, and in this case there was nothing to take the appeal out of the ordinary course of the Committee. Their Lordships would, therefore, advise Her Majesty that the judgment of the High Court be affirmed, with the costs of the present appeal.”
In another case from Bengal the Decree of the High Court was affirmed. There seems to be terrible delay in these appeals. Thus one case there had been pending 12 years. In another case from Bengal the Decree appealed from was in 1869, and the original Decree in the case was as far back as 1864. In two cases from Oude the appeals were from a decision of the Commissioners, there being no regular judicature, and his Decrees were reversed, the Committee holding that the lower tribunal in each instance was right, and the superior tribunal wrong. In another of the Privy Council cases the appeal was from a Decree of the Divisional Bench of the High Court at Calcutta, given in 1870, which dismissed the suit instituted in the Lower Court. The committee affirmed the Decree of the High Court. In another case the litigation had been pending for several years, the decision of the Zillah or Provincial Court was given in 1859, and the judgment of the High Court of Calcutta, reversing that Decree, was pronounded in 1862. This appeal was now argued in November, 1873, and the committee reversed the judgment of the High Court, and affirmed that of the Provincial Court (Tirey v. Rose, November 22nd). In another case the appeal was from a Decree of the High Court, given in March, 1869, reversing an order of the superior judge in the preceding year. The committee reversed the Decree of the High
Court, and affirmed that of the Court below; and it is remarkable in how many cases this occurs, that the Judicial Committee prefer the decisions of the inferior court.
Appeals are to the Privy Council from all our colonies and from our great colonial possessions, America and Australia, appeals are constantly coming. During the last sittings an important appeal was heard from Australia, in a great case between an Australian Land Company and the Government of South Australia, arising out of a purchase of land from that Government by the Company. The case was heard before Lord Penzance, Sir J. Colville, Sir B. Peacock, Sir M. Smith, and Sir R. Collier. The action was founded on an alleged contract with the Company by the Government to allot them so many lots of land, which the Government had failed to do. They denied their liability on contract, and also contended that the remedy, if any, was by Petition of Right. The Supreme Court, however, gave judgment against them, and the Privy Council affirmed the judgment, which was for nearly £34,000 damages.
The Court of Chancery.-It is the peculiar feature of this court that its judges sit separately as judges of first instance, yet form one court ;
two others sitting only as judges of appeal, the Chancellor the head of the court, capable of sitting either with them as a full court of appeal, or as a judge of first instance. Thus, it is infinitely more elastic and effective in the constitution of its judicature than the Courts of Common Law, and it affords a model of what the new judicial system will be, and, probably, was the model on which Lord Selborne, all his life accustomed to the Court of Chancery, though latterly well acquainted with the courts of law, framed his measure for the construction of the new system. This characteristic feature of the court is indicated expressively, though, probably, to most persons unobservedly, on the first day of Term, by all the judges of the court taking their seats pro forma with the Chancellor. Thus it was that on the first day of last Term
“ The Lord Chancellor, attended by Lord Justice Mellish,
Sir George Jessel (the new Master of the Rolls), the ViceChancellors, Sir R. Malins and Sir James Bacon, entered the court at Westminster and took their seats.”
And then the judges went off each to his own court, or rather division of the High Court, the whole constituting one united Court, with separate powers of sitting, and different judges for first instance and appellate business ; advantages all lost in the Common Law system, where the courts are separate, and the judges of one court cannot act in another, except on matters of practice, or in the trial of causes, or voluntarily assisting the judges of another court under Lord Hatherley's Judges Jurisdiction Act of 1870; and all the judges indiscriminately act as judges of first instance and of appeal; one consequence of this is that the Court of Error in the Exchequer Chamber cannot sit at all until Term is over and the courts of law have risen, and then can only sit for a few days at a time, the judges being soon wanted again for sittings at Nisi Prius, or in Banco after Term, or at the assizes, or the Central Criminal Court, and thus both first instance business and appellate business are delayed, whereas, in Chancery, there being separate sets of judges for each kind of business, both kinds of business go on uninterruptedly without check or interruption. Thus, in the hearing of Chancery appeals, there is no delay, and a cause is heard and decided on appeal within a few months. Hence at the opening of last Term there were only six appeals and twelve appeal motions before the Lord Chancellor and Lords Justices, all of which were heard and disposed of without delay. There were nearly 600 causes to be heard, exclusive of demurrers and other matters.
The causes standing for hearing were as follows :-Rolls' Court, 160 : Vice-Chancellor Malins, 155; before Vice-Chancellor Bacon, 120; and in the book of the late Vice-Chancellor Wickens, 154. At Common Law the arrears were not considerable, but the new trial list was increased by applications arising from the Summer Circuits. The Divorce Court opened with a list of 185 causes, against 167 at the commencement of the
paper there is
previous Term. As regards the Courts of Common Law, the comparative amount of business is to be measured of course, not only by the number of cases in Banco, but the number of actions entered for trial in each of the three courts, which is always considerable for the sittings on and after Term, say, on an average, at least 150, making, altogether, 450 or 500 cases, certainly not above 600. These are only the cases for trial, which is not, like a hearing in Equity, final, but usually is not so, and generally gives rise to subsequent hearing in Banco.
The Law Times thus stated the amount of business in Banco :
“The present state of business in the Common Law Courts is as follows: In the Queen's Bench there are fiftyone cases for argument in the new trial paper, the first case having been moved just a year ago, and being part heard. In the special paper in the same court one case stands for. judgment and thirty-two for argument. In the enlarged rule
ne case for argument. In the Crown paper there are forty-six cases for argument. In the Court of Common Pleas new trial paper there are twenty-five cases, and twenty-one cases in the special paper. In the Court of Exchequer there are seven cases in the new trial papers and fifteen cases in the special paper. The Court of Exchequer Chamber will sit after Term. There are five appeals from the Queen's Bench ; from the Common Pleas seven for argument and one for judgment; and from the Court of Exchequer, two for argument and two for judgment. The Court of Criminal Appeal will sit on Saturday's Term.”
So much for a general comparative view of the amount of business in the Court of Chancery and Common Law with their relative judicial strength. It is to be observed that the courts of law are strong enough with six judges in each, to have a full court in Banco, constituted of three or four judges, with a judge constantly sitting at Chambers, and another constantly sitting at Nisi Prius, whereas the four judges of first instance in Chancery can each only sit in court to hear causes or demurrers, and must postpone the Chamber business until the end of the judicial day, when worn and wearied by Court work. It may be conceived, with such an immense amount of judicial business to be disposed of, with
what consternation the Equity part of the profession must have heard of an intention not to fill up the vacant Vice Chancellorship, with a list of nearly 160 causes to be heard in that Court. Lord Selborne, with a laudable anxiety to do his best to supply a deficiency, issued the following notice :
“In consequence of the lamented death of Vice-Chancellor, Sir John Wickens, and to make provision for the hearing of some urgent applications in the causes and matters which, at the time of his death, were attached to his Court, the Lord Chancellor has directed that until the successor to the late Vice-Chancellor shall be appointed, applications in any causes or matters so attached may be made to his Lordship personally."
But, at the same time, the Lord Chancellor announced that he should sit in the Court of Appeal every day throughout Term, and that "he would, except on Saturdays, during Term, usually sit in full Court with the Lord Justices of the Court of Appeal.” Even a Lord Chancellor cannot be ubiquitous, and of course every day he sat for a ViceChancellor, he was absent from his Court of Appeal. However, happily after a few days, Lord Selborne announced that a new Vice-Chancellor would be appointed, and the consternation excited in the Courts of Equity was allayed. Half the Term, however, elapsed before the new ViceChancellor took his seat, and in the meantime Lord Selborne was indefatigable, now sitting as a judge of first instance, now a judge of appeal, and certainly no Chancellor worked harder or more conscientiously. He sat every day somewhere, and as far as he could he applied himself to the duties of the Court of appeal, where he and Lords Justices James and Mellish constituted a splendid appellate tribunal. It was only when he was engaged in sitting for the ViceChancellor that the Lords Justices sat without him in the Court of Appeal. It has always been his opinion, in accordance with the intention of the Act constituting the Court of Appeal in Chancery, that the Court should be held as often as possible as a full Court, composed of the Chancellor and both the Lord Justices; and no doubt that will be the