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the payment of debts. When there was a trust it was clear that a purchaser, when the death of the testator was recent, ought not to inquire whether there were any of his debts remaining unpaid, and the same thing applied to a charge of debts. A purchaser wonld be protected by a court of equity, and it was immaterial to him whether there were any debts or not. The next question was whether, on the construction of this particular will, the executors took the legal estate in the land, and his lordship was clearly of opinion that they did. It was, therefore, qnite immaterial whether they alio took a beneficial interest. There was a direction to the executors to pay the testator's debts, and his real estate was devised to them. That created a good charge of the debts on the real estate. Then the only question was whether, seeing it was ten years since the testator's death, the purchaser was entitled to ask whether any of his debts remained unpaid. In different cases the lapse of different periods of time after the death of a testator bad been held sufficient to entitle a purchaser to inquire whether any of his debts were unpaid. His lordship thought it desirable that a general rule should be laid down which could be acted on in practice, and he was of opinion that it would be reasonable to fix twenty years after the testator's death as the limit, because that was the period of limitation for the recovery of specialty debts. Most owners of land owed mortgage debts, and when, alter the expiration of twenty years from the death of a testator, the person beneficially entitled to his real estate was in possession of it, there was a presumption that his mortgage debts and all his specialty debts bad been paid, and consequently that bis executors had no power under a charge of debts to sell real estate for the payment of debts. But his lordship thought that the lapse of ten years was not enough to raise this presumption. He was of opinion that the vendors could make a good title. Brett, L. J., thought that the time after which a purchaser would be entitled to ask whether any debts of the testator remained unpaid must be a considerable time after bis death, and the question was, what must that time be? Unless there were some peculiar circumstances, he thought the question was best solved by saying that, a9 a general rule, the question should not be asked within twenty years after the testator's death; but that it might be prudent to ask it after the lapse of more than twenty years from the death of the testator. Hoi.kkb, L.J., concurred.—Solicitors, Pariah, Daintrey, $ Bickaon; Murray, Sutchins, dV Stirling.

WillConstructionDevise On Condition That Devisee RelinQuish Debt Due To Htm By Testatoe—Death Of Devisee Before TesTator.—In a case of Kirk v. Kirk; before Fry, J., on the 11th inst., a question arose as to the effect of a devise of land, made on condition that the devisee should relinquish a debt due to him bv the testator, the devisee having died before the testator. The testator devised some land to his son B., in fee, on the express condition that he, his executors or administrators, should, within three months after the death of the testator, give np all claim to a sum of £3,400 which the testator owed him. And the testator devised some other real estate to trustees on trust for sale, and to apply the proceeds of sale, after payment of the deficiency (if any) of his residuary personal •slate to pay his debts (except a mortgage debt, and the debt due to R.), on trust for the testator's wife for her life, with remainder to some grandchildren of the testator. And he bequeathed the residue of his personal estate to the trustees on trust for conversion, and to apply the proceeds in payment of his debls (except the mortgage debt, and the debt due to R.), aod to retain the surplus for the benefit of two sons of the testator. But, in case the residuary personal estate should be insufficient to pay his debts (except as aforesaid), he directed that the deficiency should be paid out of the proceeds of Bale of the real estate which he had directed to be sold. R. died before the testator, leaving no issue. Fry, J., held that the testator's intention was that, in any event, his residuary personal estate should be increased by the £3,400, and that the land which he had devised to R. must, notwithstanding the death of R., be charged with the payment of the £3,400.—Solicitors, TV. R. A.Kime; G. A. Ball.

The Times understands that only the first part of the Criminal Code Bill will be proceeded with during the present session. Mr. Hopwood, M.F., however, will moTe on the 8th of March the second reading of his Bill for the adoption of that part of the Criminal Code as framed by the Commissioners which relates to procedure in trials on indictment, &c, and to the creation of courts of appeal in criminal matters,

In the House of Commons, on the 10th inst., Mr. Gregory asked the President of the Board of Trade whether his attention had been called to the Railway Bills in the present session which proposed to repeal or alter section 92 of the Lands Clauses Consolidation Act, 1845, and what course he proposed to take with respect to the same; and whether be contemplated any terms being imposed npon the railway companies applying for further powers in the preset session, in accordance with the recommendations of the Select Committee on Railways.—Mr. Chamberlain: My aitention has been called to the Railway Bills of the present session, which propose to repeal or alter section 92 of the Lands Clauses Consolidation Act, 1845; but I do not think it necessary to take any action with regard to them, for I learn that the proposal is not a new one, that similar provisions have for many sessions past been inserted in a great number of Bills, and that the powers sought are carefully guarded by requiring the lands, buildings, or manufactories required to be taken to be described in the schedule, and then only a portion of them can be taken when, in the judgment of the jury, arbitrator, or other authority assessing the compensation, it is fair and reasonable to do so. With regard to the second question, I have to say that it is my intention to call the attention of the committees to whom Railway Bills of the session may be referred to the recommendations contained in tb.e report of the Seleot Committee of last sesaion with regard to the classification of goods.


The following is the report of the Committee of the Incorporated L'iw Society appointed to consider the report of the Lord Chancellor's Legal Procedure Committee :—

To the President and Counoil of the Incorporated Law Sooiety.

Law Institution, Chancery-lane, January 30.

Gentlemen,—The committee appointed at the speoial meeting of members of the Incorporated Law Sooiety held at the Law Institution on the 18th of November, 1881, to consider the report of the Lord Chancellor's Legal Procedure Committee beg to report as follows:—

In conformity with a resolution passed at that meeting, your commitee invited the secretaries of the provincial law societies to name any one or more of their members to join them, and the majority of those societies have expressed their desire to co-operate with the committee. In further compliance with the terms of the resolution appointing your committee, various opinions and suggestions from members of the profession, as well as resolutions passed by some of the provinoial law societies, have been received aod fully considered.

In dealing with the subject, your committee propose first to make some general remarks on the objects proposed, and the general scheme for effecting those objeots recommended, by the Legal Procedure Committee, and then to consider seriatim the several resolutions in whioh the Legal Prooedure Committee embodied their conclusions.

The Legal Procedure Committee were desired by the Lord Chancellor to meet "for the purpose of considering what ohanges might be expedient and practicable in the practice and procedure of the three divisions now forming the Queen's Bench Division of the High Court of Justice"

The report of the Legal Prooedure Committee (hereinafter called the report) does not profess to deal exhaustively with the whole of the subjectmatter referred to them, and is, in effect, confined to the consideration of London practice.

It may be gathered from the report that all the changes recommenced have in view the more speedy and economical administration of justice, and your committee desire at once to express their entire sympathy with this object, and their conviction that in its attainment the interests of the publio and of both branches of the profession coincide. While thus agreeing with the aim of the Legal Prooednre Committee, your committee are not able, in all respeots, to approve of the means proposed in their report for effecting it.

The recommendations of the report fall naturally into two divisions—(I) procedure up to trial; (2) prooedure at and after trial. The first ten resolutions of the report are ooncerned with the former, tbe remaining sixteen with tbe latter) inoluding, however, a general recommendation as to costs and uniformity of prooedure in both divisions of the High Court.

An examination of the judicial statistics for 1879, instituted by the Legal Prooednre Committee, brought ont the remarkable result that of upwards of 59,000 actions commenoed in that year, only 3'73 per cent, went to trial. In tbe opinion of your committee these statistics lead irresistibly to the conclusion that the existing procedure and praotice, up to notioe of trial, is satisfactory to the public, in that it enables the vast majority of oases to be settled without incurring any of the really heavy expenses whioh commence only with notioe of trial. They oonsider that in this respeot the existing system works well, and are not prepared to advocate any alteration of its leading features, exoept in the direct ion of rendering it still more efficacious for effecting settlement of actions in their early and comparatively inexpensive stages.

Your committee have arrived at a oonolusion to some extent at varianoe with that of the Legal Prooedure Committee. The latter are of opinion, it is trne, that the writ in its present form is effective in bringing defendants to a settlement at a small cost, and that it is nnadvisable to make any alteration by uniting with it a plaint or other statement of the plaintiff's cause of action, wbioh would add to tbe expense of the first step in the litigation, and with this opinion your committee fully coneuj. But the Legal Procedure Committee recommend in their first ten resolutions considerable ohanges, whioh. if carried into effect, would materially affeot the existing system. Tour committee object more particularly, for reasons to be assigned, to the proposals to virtually abolish pleadings, to give an officer of the court an almost absolute control over the mode of oonduoting an action, and to restriot tbe right of discovery w itbin very narrow limits. At tbe same time there are not a few improvements in detail comprised in these ten resolutions with whioh your oommittee agree.

To the remaining sixteen resolutions of the report, so far as they deal with trial and the subsequent procedure, yonr committee see little or no objection in principle, though on some points they differ from the resolutions, and, in some instances, they have to offer further suggestions.

With these preliminary observations your committee proceed to consider seriatim the resolutions of the report.

• , , 1 ' t- ,'


Resolution of the L. P. 0., No. 1:—The plaintiff shall on his writ indorse the notice of his claim in a manner similar to that in use in indorsed writs at present. The defendant shall within (say) ten days after appearance, give notice of any special defences such as fraud, the Statute of Limitations, paymeut, &c, after which the plaintiff shall give notice of any special matter by way of reply on which he intends to rely.

Resolution 3. — .No pleadings shall be allowed unless by order of a judge.

[Resolution 2 is dealt with hereafter.]; !,•_ ..'in , ■••"••in 11 , • il

Your committee have approached the subject of these resolutions with a desire to see all unnecessary proceedings abolisbed, and tbe points at issue between litigants defined and decided in tbe speediest manner possible. They thoroughly recognize that the interests of the public and of the profession are tbe same—Tie, to obtain a competent judicial decision at tbe least expense and in the shortest time possible. But, in the opinion of your committee, these objects will not ba attained if suitors, on coming into court, find themselves in uncertainty or at variance as to the questions to be decided between them.

It is stated in the report that of the 69,659 actions commenced in 1879, in 15,372 judgment was signed for want of appearance, in 4,251 judgment was signed under order 14, and that in addition 16,967 resulted in judgment by default, and 20,804 were unaccounted for, and therefore presumably settled, or abandoned after some litigation. There are no records to show at what particular stages these 37,771 cases were settled, but it is certain that they were nearly all settled by solicitors without the intervention of the judges or officers of the court, and your committee, composed almost entirely of solicitors largely engaged in practice in the Queen's Bench Division, have no hesitation in asserting that very many of these cases were so settled after and in consequence of one of the parties having ascertained by means of the existing practice of pleadings, particulars, discovery, and interrogatories, the strength of his opponent's case. If these interlocutory proceedings were restricted as proposed, more cases would be set down for trial than at present, with the result of a most serious increase of expense to litigants. Tbe really heavy costs of litigation are not incurred until notice of trial is given, when it becomes obligatory on tbe solicitors to get up evidence, prepare briefs, pay fees to counsel, and suhvn-na witnesses. Tbe costs of an action, settled after appearance and before notice of trial, are, according to their experience, less than one-fourth of the costs of an action tried or settled after notice of trial.

In the oounty courts, where there are no pleadings, adjournments in any but tbe simplest cases frequently take place, in consequence of one party being unprepared with evidenoe on points unexpectedly raised by the other. In these county court cases, where the matter in dispute is local, the day of trial fixed, and the witnesses and advocates at hand, such adjournments involve little extra expense.'- It is impossible, however, to over-estimate the loss attendant on such adjournments in actions in tbe Queen's Bench Division, in which witnesses have often to come great distances, and wait mauy days for the trial, and further fees have to be paid to the counsel and solicitors engaged.

Assuming, however, the recommendation of the report to be adopted, what would be its practical operation?

It is true-that the actual expense ot drawing statements of claim and defence would be avoided in those cases in which pleadings were not allowed byt he judge; bnt that expense forms a very small proportion of the costs of an action.

On tbe other hand, one of the first applications after writ and appearance would be—not to a master for directions, but—to a judge who would be asked to determine whether pleadings are necessary or not. To enable him to decide this question, facts would have to be stated, possibly in the form of affidavits, and counsel might be employed to advise and appear before the judge. Much expense would thus be incurred whioh is now unknown, and which wonld far outweigh, in most cases, the bare saving of fees for drawing statements of claim and of defence.

If pleadings are, as a rule, abolished, and notice of special defence adopted, such notice wonld probably, in many cases, be tantamount to a pleading, whether in the form of tbe old technical pleading abolished by the Judicature Acts, or in the form of a modern statement of defence; in either'case without diminishing the costs incurred in the earlier stages of the action!!"

Your committee are of opinion that a change of such importance in a system which, on the whole, has produced satisfactory result--, may be attended with serious consequences, and, on the above grounds, they resolved that, " Pleadings are essential to define the real points at issue, and that the system of pleadings prescribed by the Judicature Act and Rules should be substantially adhered to."

A very small minority approved of the suggestion of the Legal'Procedure Committee with reference to pleadings.

A proposition was supported by a considerable number, though less than a majority, of your committee that statements of claim and of defence (which in the spirit of the Judicature Acts should consist mainly of allegations of facts) should be verified on oath ; and by some of your committee it was contended that there should be liberty for the opponent to orally cross-examine. It was urged that such a course would, in many instances, obviate the necessity either for discovery of documents upon affidavit, or for interrogatories, also that in a large number of oases the result would be to put a atop to any further contest


Resolution 2. —Every action shall be assigned to a particular master's list. At any time after the writ, appearance, and time for notice of defence, a gammons (hereinafter called a summons for directions) may be taken out by either party before the master to whom the cause is assigned, for directions as to any one or more of the following matters:—Further particulars of writ, farther particulars of defence or reply, statement of special case, venue, discovery (including interrogatories), commissions and examination of witnesses, mode of trial (including trial on motion for judgment and reference of cause), and any other matter or proceeding in the action previous to trial.

Resolution 4.—The existing practice of requiring a separate summons for each separate matter shall be discontinued; and upon any summons by either party it shall be competent for the judge or master to make any order which may seem just at the instance of the other parties.

Resorption 5.—Any application which might have been made upon the summons for directions shall, if granted upon any subsequent application, be Rr mted at the cost of tbe party so subsequently applying, unless the master or judge otherwise direct.

In considering whether every action should be assigned to a separate master's Hit your committee perused the memorandum drawn op by the masters in

reference to the recommendation of the report to that effect; aud, efter much discussion, agreed with tbe recommendation.

Your committee are aware that tbe adoption of the recommendation must necessarily involve a considerable change in the existing arrangements of the masters' office; and yonr committee accordingly passed the following resolution :—" That every action should be assigned to a particular master's list, and that work in chambers. 'should be so re-arranged as to provide for designating masters "to .whom actions should be assigned, and for such masters sitting daily in chambers to hear applications in respect of the matters so assigned to them."

As indicating some of the changes which your committee think it desirable to introduce into the conduct of business in theOantral Office, they make the following suggestions :— ," '.; *

(a) "That the work in the masters' offices\m!g1}£ with advantage, be rearranged, and that it is desirable that' a. 'system "be adopted, vhereby the regular attendance of the masters in'chambers may be secured, for which purpose the committee suggest that the duties of hearing summonses, taxing bills, and attending in court, should be performed by distinct sets of officials."

(6) "That arrangements be made whereby the evidenoe of witnesses going abroad may be taken before the masters, so as to avoid the expense of special examiners."

(c) "That in all cases heard before tbe master or judge, in which counsel appear on one side, and the solicitor or his managing clerk on the other, the minimum allowance to the solicitor for attending shall be one guinea."

(if) "That all affidavits shall be filed, and office copies obtained before they are used. That such office copies shall be u^d in place of all original affidavits. Tbat there shall be a separate room in the Central Office, where affidavits may bo filed, and where copies of the affidavits made by the solicitor filing the same may be, there and then, marked as office copies. That the costs of attending to file the affidavits, and obtaining office copies, and of such copies shall be allowed as costs in the cause, unless otherwise ordered."

(c) "That as the practice pursued at the Central Office as to pay men t into court is unnecessarily inconvenient and troublesome in cases where money is ordered to be paid into court to abide the event, the same to be paid into the Branoh Bank of England in the Central Office on a simple request of the solictor, who Bhall, in exchange, receive a stamped receipt from the bank, which shall be evidence of the payment in ; tbe bank to send up to the office where money is now paid out of court a daily return of all payments in."

(/) "That in all cases of payment on notice or statement of defence, or other pleading in satisfaction of the cause of action, it shall not be necessary to pay the same into court, but tbe payment shall be made direct to tbe plaintiffs solicitor without the necessity of obtaining the plaintiff's written authority."

{g) "All payments out of court shall be made to the solicitors for the party entitled to tbe money withoot requiriog his client's written authority."

It hardly appears to your committee necessary to give reasons in support of the previous suggestions, which are intended to facilitate the transaction of business in the masters' offices. The arrangements suggested as to filing affidavits are to meet the occurrence, now very frequent, of the loss of original affidavits. The suggestions as to payment of money into and out of court are to facilitate business, and to pnt an end to the absurdity of the existing system of payment of money iuto or out of court, illustrated by the faot that, without any written authority from the plaintiff, his solioitor may receive and give a legal discharge to the defendant for the amount, however large, recovered in the aotion; whilst, if only one shilling is paid into court, the solicitor must obtain the written authority of hia client, and sometimes get such authority verified by affidavit, before the money can be obtained. A precedent for the payment direct to the solicitor is the dispensing in the Conveyancing Aot with any written authority from the olient to the solicitor to receive purchasemoney.

Sumhoxs Fob Directions.

With respeot to the summons for directions, your commitee are unanimously of opinion that they cannot concur in the recommendation of the report, for the following (among other) reasons :—

First The effect of such a procedure would be to deprive the suitor of tl e right of conducting his case as he thinks most conducive to his own interest. This right yonr committee consider he ought to retain, and they would point ont that the proposal to transfer to an official the control over the working aud details of an action, now exercised by the parties and their advisers, is, they conceive, direotly opposed to tbe tendency of the alterations in procedure during the last fifty years, and to the principles of the Judicature Acts. It would further have the effect of throwing a far too difficult, if not an impracticable, task on the master, and of placing him in an anomalous position.

Secondly. If, as the committee understand, it is the intention or hope of the Legal Procedure Committee that, on tbe summons for directions, a general scheme for tbe conduct of future proceedings in the action is to be settled, every solicitor in an action must be prepared then and there to state accurately and exhaustively the line he is desirons of punning. It would be in the opinion of your committee impracticable to forecast, to this extent, the coarse of proceedings; and a slip on the part of the solicitor, or a mistake on the part of the master, might lead to serious and unforeseen consequences.

Thirdly. There would probably in many cases, after a lengthened disoussion before the master, be an appeal to the judge, in which counsel, with all the attendant expense, would be employed, so tbat by the time the order was finally settled, the costs wonld far exceed those under the present practice.

These latter reasons are principally based on the assumption tbat the Bummons for directions is intended to be disposed of on one application. Your committee are not certain whether the Legal Procedure Committee intended the summons to be disposed of on one application, or to be set down from time to time to dispose of the several steps in the action as they arise. Whichever oourse is intended, your committee apprehend that it will fail to secure its object; and they consider the objection to giving an official of the court the control over each step in the action to be insuperable.

Your committee approve the fourth resolution, but its wording appears to them too wide, and they passed the following resolution with the view of expressing that the order to be made by the judge or master should not extend beyond the subject-matter of the Bummons:—" That the existing practice of requiring a separate summons for each separate matter should not be compulsory, and upon any summons by either party it should be oompetent for the judge or master to make any order which may seem just, at the instance of either party, in relation to the subject-matter of the summons."

A considerable minority of your committee was of opinion that summonses might be advantageously abolished, and that applications in chambers should be made upon written notices betwoen the solicitors, and that appropriate arrangements should be made in chambers for hearing such applications in specified order. x

Discovert. .

Resolution 6.—Discovery and interrogatories shall be limited to. suoh discovery of documents or facts relating to any part of the matter in dispute as the master shall order. The costs, nnless otherwise ordered, Bhall be borneSn. the first instance by the parly asking for discovery or interrogatories, and shall be allowed as part of his costs of suit, where, and where only, such discovery or interrogatories shall appear to have been reasonably and usefully asked for. X.

Your committee have carefully considered the remarks made in the report under this head, and are unable to agree with the resolution as a whole.

The existing practice as to discovery and interrogatories frequently brings to light documents and facts which would not otherwise be obtained from the opponent before trial, and in the opinion of your committee an early settlement of litigation frequently results from the exercise of this right. Your committee are therefore of opinion that the right to discovery should be unrestricted, and they object to the proposed control over it of the master. They conaider that such control is unnecessary, and would unreasonably curtail the I right of litigants to conduct tbeir eases as may appear most conducive to their' interests.

At the same time, your committee share the desire expressed in tbe report to check, as far as possible, an abuse of the right to discovery; and they adopt the suggestion that the cost of answering interrogatories, as well as of giving discovery, shall be paid by the party requiring the same, to be allowed as coats of the action when such costs are reasonably incurred.

It appears to yonr committee that this oonditiou will, with some minor modifications of existing practice, satisfactorily regulate a mode of prooedure which, together with pleadings, they consider most conducive to the speedy settlement of actions.

Your committee have embodied these views in the two following resolutions in lieu of Resolution No. 6 of the report :—" That it is desirable that each party to an action should be entitled, as of right, to deliver interrogatories to, and hive the discovery of documents from, the other party, subject, in the case of interrogatories, to an application to a master to strike out questions on the same grounds as at present; but that in order to check any abuse of such a rule, and unnecessary expense, the following course should be adopted. Either party should be at liberty, after statement of defence, to administer interrogatories, and also without any summons and order for discovery, either party should be bound, if so required by the other party within ten days after statement of defence, to deliver an affidavit of documents; but suoh discovery should be limited to such points relating to the matters in question in the action as should by notice be required. That the costs consequent on interrogatories, and of discovery, unless otherwise ordered, should be borne in the first instance by the party asking for discovery, and should be paid by him to the other party, unless payment into court be directed; and such costs should be allowed as costs in the cause where, and where only, snoh discovery and interrogatories should appear to have been reasonably asked for."

Notice To Admit Specific Facts.

Resolution 7.—The recommendation of the first report of the Judicature Commission (p. 14), with reference to parties being required to admit specific faots, ought to be carried into effect—viz., if it be made to appear to the judge, at or after the trial of any caso, that one of the parties was, a reasonable time before the trial, required in writing to admit any specific fact, and without reasonable cause refused to do so, the judge should either disallow to such party or order him to pay (as the case may be) the costs incurred in consequence of such refusal.

The committee agree with Resolution No. 7, believing that, if adopted, it would in many cases save expense.

With the view of diminishing tbe expense of formally proving official documents, your committee resolved :—" That an official certificate of the registration of memoranda and articles of joint stock companies, bills of sales, judgments, litet pendente!, bankiuptoy proceedings, enrolled or registered deeds, and other documents in the care or custody of public officers, should be proof of the due registration of such documents.

And as your committee are of opinion that rule 1 of order 37 of the Judicature Act relating to evidence by affidavit has not sufficiently attained the result desired of taking evidence partly by affidavit, they resolved :—"That in order to avoid unnecessary expense where oral evidence is to be taken at the trial, the parties to the action, whether acting in their own right, or on behalf of others, should be at liberty to agree that any portion of the evidence should be taken upon affidavit only."

Appeals Prom Chambbrs. Resolution 8.—The appeal from a master shall be to a judge in chambers. Resolution 9.—The appeal from a decision of a judge in chambers shall be to the court in Banco; such appeal shall only take place, in cases of special

difficulty and importance, when allowed by the judge giving the decision, or with special leave of such court.

Resolution 10.—The resolution as to limiting appeals from a judge in chambers shall apply to matters of procedure snd practice only.

Your committee agree that appeals from a master should be to a julge in chambers; but they think that Resolution No. 8 does not go far enough, and accordingly tbey passed the following resolution :—" That the appeal from a master should be to a judge in chambers by reference to him of the original summons, without the necessity of issuing a fresh summons, the master to indorse on the summons his decision, and shortly his reasons for the same."

Your committee being of opinion, for the reasons hereinafter stated, that the court in Banco can with advantage be abolished, think that an appeal from a judge in chambers should be to the Court of Appeal; but, having regard to Resolution No. 10, with which they agree, ftfe* see no necessity for limiting the appeal to cases of special difficulty and importance, and they passed the following resolution :—"That the appeal from the judge in chambers should be to the Court of Appeal, but in regard to matter* of procedure and practice, only with the leave of the judge appealed from, or of that court; and a defendant should not, without the like leave, be allowed to appeal against an order giving him conditional leave to defend."

Jodoment Debtors' Summonses.

Resolution 11.—In debtors' summonses the jurisdiction of a judge at chambers shall bo transferred to tho Court of Bankruptcy In London.

With respect to this resolution, your committee recommend that the jurisdiction should be transferred to the Court of Bankruptcy generally, and not to the London court only; and they also desire to call attention to the present unreasonable burden thrown on a judgment creditor, in having to prove that the debtor can pay, before the judgment can be enforced by committal. They think that the onus of proof of inability to pay should be on the debtor, and accordingly passed the following resolution:—"That in judgment debtors' summonses the jurisdiction of the judge at chambers should be transferred to the Court of Bankruptcy. That a uniform procedure in all courts should be adopted as to judgment summonses, casting the onut of proof of want of means on tbe judgment debtor."

Mode Of Trial.

Resolution 12.—The mode of trial shall be by a judge without a jury; but, on the summons for directions, on tho application of either party, an order shall bo made that the canse be tried by a jury, if it shall appear that the questions involved can conveniently be so tried: Provided always that in the following cases the right of either party to a trial by jury shall be absolute—libel, slander, seduction, false imprisonment, malicious prosecution, breach of promise of marriage.

Your committee have now to deal with the remaining resolutions of the report, which relate to procedure at and after trial, and to costs.

Much discussion took place on the subject of Resolution No. 12; but, as your committeo were unable to agree, either with the resolution, or with any amendments dealing with the entire subject, it was decided to treat the resolution as divided into two branches; and accordingly the following resolntion wss passed :—"That the ordinary mode of trial should be by a judge without a jury."

The remainder of the resolution as it stands in the report was evidently framed in conformity with, and on the basis of, the proposed summons for directions, which your committee found themselves unable to accept.

Your committee are of opinion that,after issue joined, an application should be m ade to a judge to settle the issues, in a manner analogous to the practice of the Scotch courts, and also to give directions as to the mode of trial. The practice of settling issues narrows the questions actually disputed, thus saving the exponse of bringing witnesses to prove facts which, on the opening of the case, are either practically admitted, or abandoned. The settlement of issues would, indeed, often result in settling the action.

Your committee agree with the Legal Procedure Committee in their desire to prevent actions being taken down to trial and then referred, and they think that the resolution on that snbject contained in the report, with the modifications now suggested, will, to a great extent, obviate this scandal.

The views of your committee are expressed in the following resolntion :— "Whilst approving of the suggestion that the ordinary mode of trial should be by a judge without a jury, the committeo recommend that, after issue joined, application should be made to a judge in chambers to settle the issues of law and faot, and for directions as to the mode of trial, or other disposal of the action; and that the action should be tried or disposed of in the manner so directed: Provided that in the following cases the right of either party to a trial by jury shall be absolute—libel, slander, seduction, false imprisonment, malicious prosecution, breach of promise of marriage, and assault. Either party to be at liberty to appeal against any order made on suoh appli

Bhostband Writers' Notes.

Resolution 13.—Official shorthand writers, one or more, shall be appointed to attend in each court ; a note of so mnoh of the evidence, and of such proceedings as the oonrt or jndge shall direct, shall be taken in every case; the expense of taking such note shall be borne by the parties, as shall be directed; and the court or jndge shall have power to direct that such notes or any part thereof shall be transcribed, and to make such order as to payment by the parties as shall be deemed just.

Your committee agree that an accurate note of the'evidence and proceedings should be taken; but cannot adopt the recommendation that shorthand writers should be made officers of the court. It appears to your committee that official shorthand writers, at a fixed salary, could scarcely be trusted to exeoute the work of transcription with the expedition frequently required— say for the use of counsel on the following morning—and that in this respect the present state of things should not be altered. At the same time they think that the shorthand writers employed in court should possess a recognized status, and be furnished with proper certificates of competency.

In the opinion of your committee a note should be taken in all cases, but the propriety of taking a transcript and making copies should be left to the taxing master.

But your committee wish it to be distinctly understood that, in their opinion, it is to the advantage of the suitors that the judges should continue to take notes of the evidence as at present.

The following resolution was accordingly passed by your committee:— "That whilst approving of an accurate shorthand note being taken of the proceedings at the trial of actions, this committee is of opinion that it is undesirable to appoint officials for that purpose, but that it is expedient that a body of shorthand writers should be constituted who should possess a recognized status in the courts or justice. The master to allow the cost of the note, but that of the transcript, and copies of such transcript, to be in his discretion."

Cause Lists.

Resolution 16.—The lists of causes to be tried by juries, and by judges alone without juries, shall be kept separate.

Your committee concur in this recommendation, with the addition contained in the following resolution; the adoption of which would, as they believe, merely render permanent an arrangement which has been already tried as an experiment by the Lord Chief Justice, and, as they understand, with success :—" That the list of causes to be tried should be divided into special juries, common juries, and oauses without a jury, and that separate courts should sit for each class of cases."

Official Referees. Resolution 17.—On the assumption that the procedure by way of official referees is to be continued, the referees shall have power to sit in open court, and to deal with the whole cause, unless by the order of reference it is otherwise provided.

With reference to this resolntion your committee are of opinion that the duties of the masters, in references, should be transferred to official referees. The masters would thus be relieved of a considerable portion of their present duties, and would have time to dispose of other matters requiring their attention.

There appears to he, in some quarters, a desire to abolish the office of the official referee. Your committee believe the office and functions of official referees to he highly useful, and capable of a wider application than they have yet received; and your committee would strongly deprecate the abolition of the office. The views of your committee are expressed in the following resolutions:—" That this committee is of opinion that the general scheme of appointing official referees as contained in the Judicature Acts is a valuable one, and that such appointments should be continued, and with such additions to the number and alterations in the powers and duties of the referees as may bo necessary to entitle that tribunal to the confidence of the public and the profession." "That the committee are of opinion that official referees (whose number should be increased as occasion may require) should have the same power as a judge to deal with the whole cause, subject to appeal. The jurisdiction of the masters, as arbitrators, to be transferred to such official referees."

Motions And New Trials.

Resolution 14.—All applications for a new trial shall be by notice of motion, stating the grounds of application to the court. Such application shall be disposed of on the motion, without any rule nisi.

Resolution 15.—The preceding recommendation shall apply also to motions by way of appeal from inferior courts, applications to set aside awards, for attachments, mandamus, quo warranto, scire facias, to answer the matters of an affidavit, to strike off the rolls, for criminal information.

Resolution 18.—After the trial of any cause before a judge and jury, the judge may, upon application, certify that he is dissatisfied with the verdict, in which case a new trial shall take place, unless the court shall otherwise order.

Resolution 19.—Neither party shall have a right to a new trial on the ground that Bome question has not been left to the jury which the judge at the trial has not been asked to leave to the jury. The court shall have power in such cases either to direct a new trial or, with the view of saving a further trial, to draw all inferences of fact or to take further evidence, or direct inquiry.

Your committee fully indorse tho remarks in the report as to motions for new trials, and other ex parte motions, and agree generally with the resolutions on this subject. Your committee are, however, of opinion that the latter part of Resolution No. 19 should be added to Resolution No. 14, and the first part of Resolution No. 19 omitted altogether. They do not think that the right to apply for a new trial should be limited in the manner suggested by the first part of Resolution No. 19; while they consider that the court should have power to draw inferences of fact, or take further evidence, or direct inquiry on an application for a new trial on whatever grounds, including applications in jury cases. Your committee passed the following resolution, which includes Resolutions Nos. 14, 19, and 22 of the report:—" All applications for a new trial should be to the Court of Appeal, by notice of motion stating the grounds of application. Such applications should be disposed of, on the motion, without any rule nut. And upon such motion the court should have power either to direct a new trial, or, with the view of avoiding it, to draw inferences of fact, take further evidence, and direct inquiry."

Your committee accept No. 15 in its entirety, on the understanding that tho motions and applications to which it refers be heard by a single judge.

Being of opinion that no new trial should be allowed except by order of the Court of Appeal, your committee cannot agree with No 18.


Resolution 21.—All appeals from a j udge without jury shall be to the Court of Appeal; and also where a judge directed a verdict for the plaintiff or defendant; and the Court of Appeal shall thereupon have power to dispose of the whole case.

Resolution 22.—All applications for a new trial in jury causes shall go to a court in Banco, consisting of three judges (of whom the judge who tried the case shall not be one): the decision of the court shall be final except with their leave, or in case of difference of opinion, or where the subject-matter of appeal exceeds £500.

Resolution 23.—All appeals from the court in Banco shall be to a Court of Appeal of not less than five judges.

Your committee concur in Resolution No. 21 as most useful, and trust that it will be adopted.

Your committee have carefully considered the remarks in the report under the heading of appeals, and much discussion took place on them, especially in regard to court in Banco, and its duties as there defined.

Your committee are of opinion that the matters now referred to such court can satisfactorily be dealt with by a single judjje, and that the court itself may be abolished. An opinion is expressed in the report that on grounds of public policy, applications in such matters as habeas corpnt, quo warranto, mandamus, and criminal informations should be submitted, in the first instance, to the judgment of a court composed of more than ono judge. In this view your committee cannot concur; nor is any argument adduced in its support, save that the judgment of a single judge would bo of less weight and authority, and would invite and multiply appeals. But your committee cannot see any sufficient distinction between the class of cases above alluded to and numerous other cases of equal importance which are satisfactorily disposed of by a single judge in the Chancery Division to justify the maintenance of the proposed court in Banco. Further, your committee feel bound to record their objection to the proposal to give an appeal, in certain instances, from the court in Banco to the Court of Appeal. Your committee are unable to appreciate the force of the reasoning in support of this recommendation (No. 23). It appears to them to be as unsatisfactory for three judges to overrule the opinions of five, as it is for two judges to overrule the opinions of four; and, on the whole, the recommendations of the report in this respect would, in the opinion of your committee, tend to revive some of the anomalies justly complained of under the old system of appeals to the Court of Exchequer Chamber.

The committee accordingly passed the two following resolutions in reference to Resolutions Nos. 22 and 23:—"That the sittings of the court in Banco should he abolished, and that all matters, now assigned to that court, should be heard before a single judge." "That all applications for new trials, and appeals from orders under Resolution No. 15, should be m-ide to the Court of Appeal."

Appeals From Arbitrators And Official Resolution 24.—Where a compulsory arbitration has been ordered, an appeal from the decision of the arbitrator shall be allowed on a question of law to the court in Banco, whose decision shall be final except with their leave, or in case of difference of opinion, or when the subject-matter of appeal exceeds £500.

The committee think that the proposed change should apply to voluntary, as well as compulsory, arbitrations. They are, however, of opinion that there should be a right of appeal, both on questions of law and fact, in every case of compulsory arbitration. In coming to this conclusion they have been influenced by the consideration that the amounts involved are frequently very considerable, and that the parties would have had such a right of appeal if the action had been tried out in court. They accordingly passed the following resolutions:—" That there should he a right of appeal from arbitrators and from official referees to a judge under the following conditions:—In references by agreement such appeal should be on a question of law." "In compulsory references the appeal should be on questions either of law or fact." "The appeal from a judge should be to the Court of Appeal." "That appeals to the Court of Appeal on questions of fact should be by leave only."


Resolution 20.—When the amount recovered in an action for a mere money demand, or for damages only, is less than £200, the plaintiff's costs shall be taxed on a lower scale, to be fixed by rules and orders, and the same scale shall he applied to the defendant's costs where the plaintiff s claim is under £200. Where the subject-matter of the appeal is less than £200, there shall be no appeal from any final judgment of the judge without leave. Neither party shall he entitled to have such actions tried by special jury. But a judge shall have power, either before or after trial, to order that any or all of these provisions shall not be applicable to any action in which a larger amount is indirectly involved, or to which, for good cause Bhown, he shall consider that they, or any of them, ought not to apply.

Resolution 25.—There shall be a uniform scale and system of costs in contentious business in all the divisions of the High Court.

Resolution 26.—These recommendations shall extend to all business which is not assigned by the Judicature Acts to a division other than the Queen's Bench Division; and there shall be, as far as practicable, a uniform system of procedure in all the divisions, so that there shall be no inducement to bring actions, not specially assigned, in one division rather than in another.

Your committee have first to observe, on these resolutions, that in actions settled before trial, the costs previous to notice of trial do not, as a rule, amount to more than 25 per cent, of the costs of actions tried out. Out of the 59,659 actions commenced in the Queen's Bench Division in the year 1879, only 2,265 were tried. The great majority of the cases settled without trial were undoubtedly settled before notice of trial, and if the recommendations contained in this report are adopted, your committee believe that this will he the case to an even greater extent. In actions so settled the costs are not as a rule disproportionate to the subject-matter of dispute.

In the opinion of your committee, the only proper, and indeed the only effectual, way to lessen expense is to lessen the amount of work to he done, not to lessen the remuneration for work .that must necessarily be done. The recommendations contained in this report, if adopted, will substantially lessen the work to be done in actions tried, in respect of which, chiefly, the complaint of excessive cost is made. On the other hand, the arbitrary lessening of remuneration for necessary work would, your committee apprehend, tend to throw the work, to which the lower scale of costs is made applicable, into the hands of an inferior class of practitioners; a result which could not fail to be injurious to the interests of litigants.

With respect to Resolution No. 20, your committee understand that it is principally intended to deal with purely monetary actions, and not to prescribe a lower scale of costs in actions in which questions, other than the pecuniary amount of the verdict, are really at stake.

On this assumption your committee observe that in actions for debt applications under order 14 are generally made, and where such applications are refused the defendant has a substantial defence which compels the plaintiff to go to trial, and if the plaintiff is so compelled your committee think there ought not to be a lower scale of costs. They are also of opinion that, in actions of tort, or for unliquidated damages, a lower scale of costs is not fairly applicable.

Your committee therefore recommend :—'1 That having regard f 0 the facilities given for obtaining speedy judgment under order 14 in all monetary actions, and to the fact that in those actions in which such application does not succeed, the defendant shows that he has a substantial defence, and compels the plaintiff to proceed with his action, it is undesirable that a lower scale of costs than that which now exists should bo adopted."

With reference generally to the subject of oosts, your committee beg to call attention to the system of taxation of costs on what is known as the "party and party" principle.

Three distinct modes of taxation now prevail—(1) as between party and party; (2) as between solicitor and client in cases in which such costs are paid by a third party, or out of a fund in court; and (3) as between a solicitor and his own client in cases where the latter, being dissatisfied with bis solicitor's bill, taxes it.

The successful litigant in any ordinary action in the Qneen's Bench Division is entitled to costs only on the first principle, which means that his claim to costs is limited to such as he has incurred in putting the machinery of the court in motion, and does not include costs which may have been incurred bona fide, and in successful efforts on his behalf. It may be stated, ■without fear of contradiction, that scarcely a bill is taxed on this principle which does not involve great hardship on the successful litigant, to the extent, sometimes, of making him in the end a loser by his successful litigation. This your committee consider should no longer be allowed to continue. They feel, most strongly, that a successful litigant Bhould always be entitled to have Ms costs taxed on the second principle, which will, in most cases, at all events give him the costs which he has fairly and honestly incurred: and accordingly they passed the following resolution:—"That the costs to be allowed to the successful litigant, and payable by bis opponent, should, in all cases, include such costs as have been reasonably and properly incurred as between solicitor and client on the principle of taxation where a third party has to pay them."

In connection with the payment of costs by third parties, your committee, in order to provide against the hardship which arises under the present system in cases where a third party is brought into an action under order 16, rule 18, and with a view to secure to the defendant the same immunity in respect of costs as the law gives him in respect of damages, passed the following resolution:—" That when a third party is joined to an action under order 16, rule 18, and he appears, and is at the trial held, to be the party liable, the judge shall have power to direct the payment by him of the costs incurred by the original defendant in the action." 1 Your committee cannot concur in the opinion, expressed at page 8 of the report, that it is desirable to give the master more power over the costs "of the cause" than he now has. The Judicature Acts give the judges absolute discretionary jurisdiction over costs in an action. Your committee think that this is the right principle, and that this j urisdietion should continue to be exercised by the judge who tries the action, and not bo relegated to a taxing master to be exercised after the trial. The jurisdiction, it is admitted, cannot be exercised in matters of detail; but on matters of principle, such as refusal to admit facts, raising and contesting unnecessary issues, and insisting on unnecessary interrogatories and discovery, the committee think that the judges are the best tribunal, and that only the details should be left to the master to settle.

Passing to Resolution 26, your committee observe that while nearly 60,000 writs were issued in the year 1879 in the Queen's B onch Division where the lower scale of costs prevails, only 4,000 were issued in the Chancery Division where the higher scale prevails. These statistics do not bear out the statement that the practice exists of issuing writs in the Chancery Division for the sake of obtaining increased costs. Nor is the practical experience of your committee in accordance with this statement. Your committee are of opinion that a plaintiff ought not to be debarred from bringing his action in the division which he thinks best adapted to afford the remedy he seeks. They further consider the difference between tho subject-matter of the litigation in the two divisions of the High Court of Justice to be s 3 great, that the mode of procedure in the two divisions must be different, and that a separate scale of costs for the two divisions ought to be maintained. They cannot, therefore, adopt Resolutions Nos. 25 and 26.

If, however, a higher and lower scale be retained, your committee think that a plaintiff who proceeds on the higher scale ought to pay a successful defendant's costs on that scale, irrespective of the amount in dispute.

Since dealing with the subjects mentioned in this report, your committee have received numerous suggestions on other matters, more or less germane to the procedure in actions in the Queen's Bench Division, but they have considered it better to confine this report to the matters dealt with by the Legal Procedure Committee, with three additions relating to (1) extension of proceedings under order 14 to actions of ejectment; (2) writs under tho Bills of Exchange Act; and (3) the Long Vacation.

(1.) Extension of Proceedings under order 14, rule 1, to Action of Ejectment.—Your committee having regard to the great delay that frequently takes place in the trial of actions of ejectment to which the defendant has really no defence, and to the great hardship on plaintiffs in being kept out of possession of property to which they are really entitled, by tenants, mortgagors, and others frequently insolvent, are of opinion that the provisions of this order should be extended to actions of ejectment, and resolved as follows :—" That the provisions of order 14, rule 1, should be extended to actions for the recovery of land."

(2.) Writs under the Bills of Exchange Act.—Your committee think that the procedure under this Act should be re-estabUshod, and that where a defendant has signed a bill of exchango or promissory note agreeing to pay a certain sum at a certain time, the Ohms of proving that he is liable to do so should not be cast on the plaintiffs as it is by the present practice. Thoy accordingly resolved:—" That rule 3 of the Rules of the Supreme Court of Appeal, 1880, by which the practice under the Summary Procedure on Bills of Exchange Act (18 & 19 Vict. c. 67) is abolished should be annulled, and the practice under that Act should be re-established. And that the number of days in which judgment may be obtained should be reduced from twelve to eight days; order 16, rule 10, being made to apply to writs issued under the Summary Procedure or Bills of Exchange Act.

(3.) The Long Vacation.—The report of the Legal Procedure Committee does not deal with the subject of the Long Vacation, but as it has been prominently mentioned since the report was made publio, your committee desire to express their opinion on the subject ; and they accordingly passed the following resolution :—" That the interests of suitors call for a reduction of the Long Vacation.''

The results which your committee have desired to promote may be summarized as follows:—

1. To diminish the expense of litigation by giving every facility for settling actions during the comparatively inexpensive stage, and to diminish the number of steps to be taken and the work to be done during the later and more expensive stages.

2. To give the parties increased facilities for ascertaining the exact issues between them, and eliciting, as far as possible, the evidence on which they rely, by means of interlocutory proceodings conducted on the responsibility of the parties, and their advisers, before the really expensive proceodings in an action are commenced, and thus to increase Btill more the large proportion of actions settled before trial.

3. To provide for the better administration of business by the suggested improvements in the masters' office, the preparation of cause lists, debtors' summonses, and other details of procedure, and by providing that all matters shall be disposed of, in the first instance, by a single judge.

4. To increase the number of actions disposod of summarily by reviving the practice under the Bills of Exchange Act, and by extending order 14 to actions for the recovery of land.

5. In the cases that are tried out, to diminish the uncertainty, delay, and expense of litigation, by having the issues settled and the mode of trial determined on before notice of trial is given, by the recommendations as to admissions of facts, written evidence, and proof of formal documents, by having actions as a rule tried by a judge without a jury, and by putting an end to the practice of referring actions at the time of trial, thus saving double fees to solicitors, counsel, and witnesses.

6. In those cases in which litigants are not satisfied with tho decision of a court of first instance, to diminish the costs of appeal by abolishing rules nisi, and all intermediate appeals; and to diminish the frequency of new trials by the recommendations enabling the Court of Appeal to finally decide tho action, instead of directing a new trial.

7. To give the successful suitor all the costs he has properly incurred in establishing a claim proved to be just, or withstanding one proved to be unjust.

In concluding their report, your committee desire to express their confident expectation that the changes herein adopted or recommended will, if carried into effect, render the administration of justice in the Queen's Bench Division more speedy, less costly, and generally more satisfactory than it has hitherto been.

We have the honour to be,

Your obedient servants,
Signed on behalf of the Committee,

Geo. A. Crowdeu, Chairman.

Note.—This report is signed by the chairman on behalf of the committee, in pursuance of a resolution to that effect, and it expresses the opinion of the majority in all the resolutions arrived at, but must not be understood to express the opinion of every individual member of the committee on every point.

The Prison Commissioners have just issued an order that all prisoners destitute of clothing discharged from any of her Majesty's gaols must be sent to the relieving officer of the district to be clothed at the expense of the local ratepayers instead of as hitherto being supplied from the gaol (tores. The Maidstone and several other unions object to the imposition of a fresh local burden, and are agitating to have the charge made a county instead of a district one.

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