speedy references to the master or registrar of liquidated demands, whether strictly matter of account or otherwise. 10. That in every case the issue, mode, and place of trial should be defined by a preliminary order on summons, which in many instances would bring about a settlement. 11. That a personal application department should be separately provided, similar to the Probate Registry; and 12. That certain days be set apart for hearing all county court cases in which no advocates appear.

No discussion was allowed on this and the two following papers owing to want of time.

THE RIGHTS AND CLAIMS OF MARRIED WOMEN. Mr. G. R. DODD (London) read a paper on this subject. LEGAL EXPENSES FROM A CLIENT'S POINT OF VIEW. Mr. J. PERRY GODFREY (London) read a paper with this title.

LAW COSTS AS AFFECTING CLIENTS.

A paper on this subject by Mr. N. HANHART (London) was not read; but the PRESIDENT stated it and the next paper would be printed and circulated amongst the members.

LAW WRITERS AND NIGHT Work.

A paper, by Mr. J. MACKRELL (London), on this subject, was also not read.

VOTES OF THANKS.

A vote of thanks to the president and members of the Sussex Law Society for their hospitality was moved by Mr. MUNTON and seconded by Mr. HUGHES (Wrexham), and carried amidst loud applause. Mr. HOWLETT and Mr. WILLIAMS, who returned thanks, were received with longcontinued cheering.

A vote of thanks to the mayor and corporation of Brighton, for the use of the Pavilion, was moved by Mr. W. PEPPERCORN (Oxford), seconded by Mr. G. A. CROWDER (London), and carried with acclamation.

A vote of thanks to the readers of the papers was moved by Mr. ELLETT (Cirencester), seconded by Mr. GRIBBLE, and carried nem. con.

A vote of thanks to the president was moved by Mr. C. O. HUMPHREYS (London), seconded by Mr. CROWDY (London), and carried unanimously, the president briefly replying.

A very successful ball and conversazione was given at the Pavilion in the evening, and several excursions were made on Thursday to Eastbourne, Arundel, and other places of interest in the neighbourhood.

THE

LEGAL PROCEDURE
COMMITTEE'S REPORT.

On the 7th of January last the Lord Chancellor addressed to the Lord Chief Justice of England a letter requesting him to preside over the committee "to consider and report apon any changes which it may be desirable now to make in the practice, pleading, or procedure of the High Court of Justice in connection with or consequential on the union of the Queen's Bench, Common Pleas, and Exchequer Divisions (if such union shall take place under the Older in Council of December 16, 1880) or otherwise, and also how far it may be expedient to limit in any respect any rights of appeal at present existing"; and, upon obtaining the Lord Chief Justice's consent, requested the late Lord Justice James, Sir James Hannen, Mr. Justice Bowen, Lord Shand, the Attorney-General, the Solicitor-General, Mr. (now Mr. Justice) J. C. Mathew, Mr. R. T. Reid, Mr. John Hollams, and Mr. Charles Harrison to serve upon the committee. The Lord Chancellor added that such of the recommendations which the committee might make as could be carried into effect by rules must, of course, be submitted at the proper time to the committee of judges appointed to make rules under the Judicature Acts.

In compliance with the Lord Chancellor's request, the committee, so constituted, proceeded to consider in numerous sittings the matters referred to them, and in the month of May presented to the Lord Chancellor the subjoined report, unanimously signed.

The Lord Chancellor, desiring to have the advantage of the confidential opinions of those learned judges who were

not members of the committee to assist him in his further consideration of the subject, circulated the report with that view among their lordships. The close of the session of Parliament arrived before his lordship had received all the observations with which the learned judges have been good enough to favour him; but expectations have been expressed, both in and out of Parliament, that the report would be made public as soon as it might appear to the Lord Chancellor that a convenient time for that purpose had arrived.

The time is now drawing near at which it will be possible to assemble the committee authorized by Act of Parliament to make rules of court under the Judicature Acts; and, as soon as this can conveniently be done, the report will in due course be laid before them; and the Lord Chancellor would propose, at the same time, also to submit for their consideration all the opinions with which the learned judges (not members of the committee) have favoured him, subject to their lordships' consent.

The Lord Chancellor has ascertained that the Lord Chief Justice of England and the members of the committee over which he presided are of opinion that the time has now arrived at which it is desirable that the terms of their report shall become generally known to the legal profession and the public, and it is now published accordingly, as follows:"Westminster Hall, 1881.

"My Lord,-The committee which your lordship desired to meet for the purpose of considering what changes 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 has agreed upon a sufficient number of matters to make it proper that we should report to your lordship. It is possible that there are others on which, if our meetings had been prolonged, we might have suggested change. But our suggestions are so many, and, if adopted, will work so considerable an alteration of practice and procedure, that we have thought it best to report at once.

"The committee had, in the first place, to consider how far it was desirable, in order to expedite the proceedings in an action, to combine with the writ of summons a statement of the plaintiff's demand, to which the defendant, when he appeared, might be required to put in his answer.

"The committee directed an examination to be made of the judicial statistics for 1879, with the view to the solution of this and the other questions relating to procedure submitted for their consideration, and the following results have been arrived at:

"In the year 1879 there were issued in the divisions of the High Court in London-writs, 59,659. Of the actions thus commenced there were settled without appearance, 15,372-i.e., 25 68 per cent.; by judgment by default, 16,967-i.e., 28.34 per cent. ; by judgment under order 14, 4,251-i.e., 7.10 per cent.; total of practically undefended causes, 36,590-i.e., 61.12 per cent.; cases unaccounted for, and therefore presumably settled or abandoned after some litigation, 20,804-i.e., 35.10 per cent. The remaining cases were thus accounted for :-Decided in court-for plaintiffs, 1,232; for defendants, 521; before masters and official referees, 512-total, 2,265;-that is, 3.78 of the actions brought.

"From these figures it seemed clear that the writ in its present form was effective in bringing defendants to a settlement at a small cost, and that it was unadvisable to make any alteration by uniting it with a plaint or other statement of the plaintiff's cause of action, which would add to the expense of the first step in the litigation.

"In the next place the committee had to consider how far it was possible, in those cases in which litigation was continued after the appearance of the defendant, to adopt a procedure (1) for ascertaining the cases in which there is a real controversy between the parties; (2) for diminishing the cost of litigation in cases which are fought out to judgment.

"The committee is of opinion that, as a general rule, the questions in controversy between litigauts may be ascertained without pleadings. In the 20,804 cases which, as appeared from the statistics of 1879, were either settled or abandoned without being taken into court it may reasonably be supposed that pleadings were of little use. Of the cases which go to trial it appears to the committee that in

a very large number the only questions are, Was the defendant guilty of the tortious act charged, and what ought he to pay for it; or did the defendant enter into the alleged contract, and was it broken by him? And in a great many others the pleadings present classes of claims and defences which follow common forms. We may take, for instance, the disputes arising out of mercantile contracts for sale, of affreightment, of insurance, of agency, of guarantee. The cases of litigants are usually put forward in the same shape, the plaintiff relying on the contract and complaining of breaches; the defendant, on the other hand, denying the contract or the breaches, or contending that his liability on the contract has terminated. The questions in dispute are, as a general rule, well known to the plaintiff and the defendant. It is only when their controversies have to be reproduced in technical forms that difficulties begin.

"It further appears to the committee that much of the expense of litigation is now due to the power which the parties have of resorting to all the modes of procedure furnished by the Judicature Acts, without regard to the real requirements of the cases which might often be dealt with as simply as summary proceedings before magistrates. It appears from the statistics before mentioned that 74,569 summonses were issued at judges' chambers in 1879.

"The mode of dealing with these questions which suggested itself to the committee was to recommend a change in procedure which would enable the court, at an early stage of the litigation, to obtain control over the suit, and exercise a close supervision over the proceedings in the action. With this view the first five resolutions which follow were adopted.

We desire, however, to add both with respect to these and all our other resolutions, that they are put forward as general recommendations, and do not profess to have been drafted in the exact form in which it would be necessary to embody them should they be converted into rules or legislative

enactments.

"It will be further found on perusing our report that various changes are suggested which have not been embodied by us in such resolutions, but which are no less a part of the conclusions and recommendations at which we have arrived.

"1. The plaintiff shall on his writ endorse the nature of his claim, in a manner similar to that in use on 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, payment, &c.; after which the plaintiff shall give notice of any special matter by way of reply on which he intends to rely.

"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 summons (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, further particulars of defence or reply, statement of special case, venue, discovery (including interrogatories), commissions and exam nations 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.

666

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

5. Any application which might have been made upon the summons for directions shall, if granted upon any subsequent application, be granted at the costs of the party so subsequently applying, unless the master or judge wise direct.'

practical difference can exist between assigning to a master all the summonses in a quota of causes and assigning to him a quota of summonses in all the causes. It ought, of course, to be part of the scheme that any one master should have complete jurisdiction to deal at any time with any other master's list or any cause in such list. We do not imagine that the system of masters' lists which we here propose to introduce will have the effect necessarily of securing the complete supervision of one master over each cause, but it will have, at all events, a tendency to promote the special acquaintance of some one master with the different stages of the same action. When the parties appear before the master upon a summons for directions, it is to be hoped that much idle and vexarious litigation will speedily be brought to a termination. On the other hand, where it appears that there is a real controversy between the parties, the master will have power under one summons to give directions as to all the ordinary steps in the action, and to control the requirements of the litigants as he considers reasonable.

"DISCOVERY.

"The committee had to consider the complaints which have been made that, notwithstanding the advantages which have in many respects resulted from the changes introduced by the Judicature Acts, the new system has produced new elements of expense. These complaints are, we believe, to a considerable extent, attributable to the unrestricted power of obtaining discovery of documents and of exhibiting interrogatories.

"From the information laid before the committee, it appears that an oppressive use is frequently made of the power of obtaining discovery which our present procedare permits. The practice of enforcing discovery was derived from the old chancery system, where it originated in the cases of breach of trust, unfaithful agency, and fraudulent devices and practices, with which originally that court was mainly conversant, and in which the material facts and documents were solely in the knowledge and power of the defendant. And, even in such cases, it is difficult to ascertain on what principle a man, by his own mere allega tion that he had been wronged by another, should be allowed of his own will to impose on that other the serious trouble, expense, and annoyance which discovery and production of documents so frequently entail. And, when the practice has come to be applied to every action, the burden imposed on the suitor becomes a serious grievance, and the temptation to resort to it, for the purpose of harassing an opponent, is often found to be irresistible.

"The order for discovery requires the plaintiff or defendant, as the case may be, to describe in a schedule to an affidavit all the correspondence, papers, books, and documents which are or have been in his posse-sion or power. This practically leads to a list (often inordinately long and unnecessarily detailed) of documents by far the greater portion of which are already in the possession of the applicant, or have no real bearing upon the matters in controversy. The preparation of these affidavits with their elaborate schedules is attended with great expense, and the affidavit is naturally followed by charges for inspection of all documents produced, and too often for copies of the whole of them. These copies are again copied, and recopied, and thus the system, directly and indirectly, adds considerably to the cost of litigation. It, moreover, gives rise to frequent applications as to the alleged insufficiency of the discovery given, and as to whether or not particular documents are to be produced, or whether privilege can be successfully claimed in respect of

them.

"The first clause in resolution No. 2 was agreed to unanimously, but we have thought it right to consult the masters before submitting the resolution to your lordship. They have in a very large majority differed from our recommendation as to masters' lists, and it is due to them to append to our report, as we have done, the reasons for this difference, with which they have been good enough to furnish us. With all respect to their experience and practical knowledge, we find ourselves unable to appreciate the difficulties which they suggest. We fail to see what

opponent.

"No written rule, it appears to us, can be so framed as to provide a system of universal application and afford at the same time a remedy for these evils without imperilling the very valuable right of obtaining inspection of material documents, and of eliciting from the parties their personal knowledge of important facts. We believe, however, that

the plan we suggest of bringing the entire controversy before a master at an early stage of the litigation on a summons for -directions will enable him to form a sufficiently accurate opinion as to the extent of the discovery of documents and facts which the justice of the case may require. It further appears to us that a check will be placed on those sources of expense by making the applicant, under ordinary circumstances, pay at the time for the discovery he thus seeks, in like manner as he necessarily has to pay for evidence sought from those who are not parties to the litigation, the master having the power upon final taxation to allow so much of these costs relating to discovery and interrogatories as may then appear to have been properly incurred. The litigant from whom discovery is sought by his opponent will thus become a witness, for whose evidence the latter must in the first instance pay, and the exercise of this inquisitorial power will be placed under proper control.

"The subject has been dealt with in the following

resolution :

"6. Discovery and interrogatories shall be limited to such discovery of documents or facts relating to any part of the matter in dispute as the master shall order. The costs, unless otherwise ordered, shall be borne in the first instance by the party 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.'

"NOTICE TO ADMIT.

"Great expense is now frequently caused by the proof of facts, about which there ought to be no dispute, and if provisions are made for enabling a litigant to give notice to his opponent to admit particular facts and rendering the party improperly refusing liable to costs, we think unnecessary expense might often be prevented. To deal with this matter the following resolution was passed :

"7. The recommendation of the First Report of the Judicature Commission (p. 14), with reference to parties being required to admit specific facts, ought to be carried into effect-viz., if it be made to appear to the judge, at or after the trial of any case, 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.

"APPEALS FROM CHAMBERS.

"With the view of diminishing the number of appeals in interlocutory matters, which seem to the committee to add unnecessarily to the costs of an action, resolutions 8 and 9 have been passed. With respect to resolution 8 some difference of opinion has existed in the profession as to the relative advantages of an appeal from the master to a judge sitting in chambers, and of an appeal to a judge sitting in open court. We think that the advantages of transacting this interlocutory business in chambers predominate. Many arrangements are made in a business-like and expeditious manner at chambers which, if dealt with in open court, wouid lead to technicalities and prolonged discussion. Moreover, a vast amount of the interlocutory business at chambers is conducted, not by counsel, but by solicitors or their clerks. To transfer such business to open court would be to encourage, if not necessitate, the employment of counsel in cases where counsel are not required, and such a change would, we are satisfied, be attended with a distinct increase in the cost of litigation.

"s. The appeal from a master shall be to a judge in chambers.

9. The appeal from a decision of a judge at chambers shall be to the court in Banc; 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.'

"As the jurisdiction of the judge at chambers extends beyond matters of procedure, the following resolution was

"The amendment of our procedure with a view to the selection of the appropriate mode of trial of matters in litigation has been the subject of much consideration by the committee.

"To the existing modes of trial-viz., by judge, by judge and jury, by referee-we propose to add a power to the master to direct a motion for judgment, where the rights of the parties are found to depend wholly or in part upon matters of law, and when there is no serious controversy as to the facts. This method of proceeding is used in the Chancery Division and in the Bankruptcy Court, and we believe that in many cases in the Queen's Bench Division it would be found to be convenient and expeditious.

"With a view to uniformity of procedure in the different divisions of the High Court, we recommend that, in the absence of directions to the contrary, the mode of trial shall be a judge without a jury. Experience shows that a large proportion of the cases that go to trial are unfit for the consideration of a jury, and in consequence great expense, delay, and inconvenience are occasioned. By the provision in No. 12, limiting the right of a party to demand a trial by jury, we desire to prevent what is now often felt to be a scandal-viz., that the parties go down to trial with all their witnesses and deliver their briefs, and then are coerced into a reference; the judge, the jury, and counsel all feeling that a jury is wholly incompetent to deal satisfactorily with the matter.

"We think that before a case is directed to be tried by a jury the master should be satisfied that the case is one to which that mode of trial is best adapted. To this general rule we consider that there ought to be certain exceptions in the instances we have named.

"12. The mode of trial shall be by a judge without a jury, but, on the summons for directions, on the application of either party, an order shall be made that the cause 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.

"SHORTHAND NOTES.

"The committee consider that, in the interests of suitors, it is desirable that an official record of the proceedings at the trial should be obtainable. Under the changes which we propose in our report the judge who tries the cause will never be present at any appeal, or motion for rehearing, and the necessary transcription of his notes will involve more trouble and delay than the transcription of the notes of a shorthand writer. Moreover, a judge can take no note of his own summing-up; and, in cases where misdirection is complained of, recourse at present must be had either to a shorthand writer specially employed, or to the imperfect and perhaps conflicting notes upon the contending counsels' briefs.

13. Official shorthand writers, one or more, shall be appointed to attend in each court; a note of so much of the evidence and of such proceedings as the court or judge 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 judge shall bave 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.'

"MOTIONS.

"The existing procedure as to ex parte motions for new triale, and other ex parte motions, we think needs amendment. It is at present possible when judgment has been signed, with the sanction of the judge who tries the case, for the unsuccessful litigant to apply to the court, upon an ex parte statement, for a rule nisi for a new trial; which rule nisi, when granted, operates as an arrest of the judg ment and a stay of the proceedings. A considerable interval of time frequently elapses before the argument of the rule, and it then, in many cases, appears that the rule has been

granted under a misapprehension, which would have been removed at once if the opposite party had been heard in the first instance. Moreover, the argument often takes place before a court not constituted of the judges by whom the rule nisi was granted, and much confusion and uncertainty attend the discussion. We think great benefit will be derived by suitors from the extension to motions for new trials and other such applications of the rule (sanctioned, to a large extent, by the Judicature Acts)-viz., that motions to the court shall only be made upon notice to the opposite party. The committee accordingly resolved to recommend that

"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,

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 affidavits, to strike off the rolle, for criminal information.'

"The recommendation embodied in the following resolution (No. 18) may appear to confer a new and large power upon the judge who tries a cause, but it does so in appearance rather than in reality. Without saying that at present when a judge is, and expresses himself as being, dissatisfied with a verdict, the verdict is never upheld, it is now certainly, and has been ever since any of us have known the profession, the general rule, acted upon in the vast majority of cases, to set aside the verdict when the judge so reports. And it has seemed to us, upon consideration, better to give to a judge the power, subject to appeal, of doing that openly, directly, and inexpensively which, in the vast majority of cases, he really does now, but not openly, nor directly, Lor till after (in many cases) very considerable and useless expense to the parties:

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

"The following resolution was passed with the object of avoiding a new trial of the cause when the ground of objec tion is that the questions put to the jury have not exhausted the whole controversy between the parties:

13. Neither party shall have a right to a new trial on the ground that some 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 cf fact, or take further evidence, or direct inquiry.'

"COSTS IN ACTIONS UNDER £200.

"The complaints which have recently been made as to the cost of litigation apply chiefly to a class of cases in which the pecuniary amount involved is not sufficient to justify the possible risks, as respects costs, of the complete system of procedure, trial, and appeal now applicable to all cases in each branch of the High Court. One remedy which has been suggested for this evil is that some portion of these cases should be transferred to the county courts, but it may well be doubted whether in all cases that course would be satisfactory to the suitors, and whether it would not lead to a greatly increased number of appeals from those courts. It has been doubted whether, it the jurisdiction of the county courts should be thus extended, they

would be as suitable as at present for the decision of questions between the more humble class of litigants for which they were established. Another suggestion has been that an intermediate court should be created for the purpose of dealing promptly and economically with the class of cases to which we have referred; and in support of this proposal the popularity of the Mayor's Court in London, the Court of Passage at Liverpool, and the Salford Court of Record at Manchester has been instanced.

"It is not within the province of this committee to deal with these suggestions, but we think that the evils complained of would, to a very considerable extent, be met by placing restrictions on the procedure and on the right of appeal in cases involving a small pecuniary sum, and by providing that a much lower scale of co-ts should be applicable to such cases. It appears to us that by the adoption of this course the suitors might retain the advantage of having their cases tried by or before & judge of the High Court at no greater expense than if the case had been tried in a county court. It is to be borne in mind that, before the establishment of the county courts, cases in which the amount sought to be recovered was less than £20 were dealt with in an exceptional manner as respects costs and otherwise. The amount to be now fixed must of necessity be arbitrarily arrived at, but, having regard to the enormous disproportion, in the smaller actions in the High Court, between the costs of litigation and the sum sought to be recovered, we recommend that the proposed limitation of procedure and of appeal should apply to all cases in which the subject-matter of the action does not exceed £200. We need hardly say that it is not proposed thus to deal with cases which indirectly involve larger pecuniary claims, or which a judge may for sufficient reasons consider proper to be dealt with under the system applicable to the more important class of cases.

"It is with the hope of diminishing the costs in these smaller causes, with the trial of which the Queen's Beach Division is so much occupied, that this resolation has been arrived at. The costs in the smaller actions in the Queen's Bench are often four times larger than the sums in dispute, or even more than this. The evil is, we fear, a growing and we have therefore suggested that, in these smaller matters, while litigants may desire to have their causes decided by the best courts and judges in the land, they should yet do so on something like the same terms as to finality and expense to which, if they had recourse to the county courts, they would be obliged to, and would contentedly, submit.

one;

"Our views on this subject are expressed in the following resolution :

666 20. When the amount recovered in an action for s 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 be 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 be 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 shown, he shall consider that they, or any of them, ought not to apply.'

"APPEALS.

"The following resolation is intended to give full efect to the provisions of the Judicature Act, that there shall be no intermediate appeal to a court in Bane from the judgment of a judge of the High Court :

21. All appeals from a judge without a jury shall be to the Court of Appeal; and also where a judge has directed a verdict for plaintiff or defeudant; and the Court of Appeal shall thereupon have power to dispose of the whole case.'

"In causes heard before a jury, it seemed desirable to offer some suggestion for sharing the appellate business between the judges of the High Court and of the Court of Appeal For certain purposes a court in Banc must continue. Not merely has it to diecharge appellate business, but, as regards inferior courts, matters are now assigned to it by statute, in some of which its decision is final. Such are all

Crown matters (with exceptions not practically worth notice), election, municipal, parliamentary, and some other matters. There are also a certain number of motions of public importance, such as habeas corpus, quo warranto, mandamus, criminal information, &c., in which the subjects of the realm from time immemorial have had the advantage of resorting in the first instance to the judgment of a court in Banc, composed of more than one judge, and whose decision is, therefore, more readily acquiesced in. We do not propose to curtail the jurisdiction, so far as it may at present exist, of judges sitting singly to deal with such matters; but, on grounds of public policy, we do not think it would be desirable to compel all such applications to be made before a single judge. The result would certainly be to deprive the judgment given by the court of first instance of much of its weight and authority, and to invite and multiply appeals in cases in which the suitors cannot always afford them, and in which delay is often a serious inconvenience. Questions of new trial, moreover, after the decision of a judge and a jury, are really questions of appeal, and often of appeal from a judge and twelve other men. And this distinction is sometimes forgotten, when it is attempted to assimilate the practice in jury cases and the practice in nonjury cases. In the latter it is, we think, quite right that the appeals should be direct to the Court of Appeal. In the former, it seems to us better, on the whole, to preserve the appeal, as at present, to a court in Banc, and to make such court in ordinary cases final. This was the old rule. If the appeal in all cases of jury trials is to be straight to the Court of Appeal, we feel sure that the arrears in that court, already considerable, would be indefinitely increased; so increased as to render the creation of a third branch of it imperatively necessary. To this, as it seems to us, there are the gravest objections. Three courts of appeal doing this sort of work would be in truth the three old courts in Banc under another name, without the same advantages for performing the work efficiently. If they sat continuously the members of them would never, except occasionally on circuit, be familiar with the work of Nisi Prius. There would thus be a set of judges doing little but try causes, and a set of judges doing little but hear appeals from such trials, without ever trying them themselves; a condition of things not, we think, satisfactory. Moreover, in the judges of the High Court we already have a body of men abundantly competent to the discharge of the duties we propose to allot to them. And further, if it be granted that there should be an appeal from judge and jury to the court in Banc, there is very good reason for making it, except in special instances, final. That three judges should overrule the judgment of one judge is natural and intelligible enough, and no one objects to it; but that three judges in one room should be overruled by three other judges sitting in another is not, we believe, satisfactory to the public or the profession. We believe further that, for purposes of circuit, and for many periods of the year, the number of the judges of the High Court cannot be diminished. Unless, however, they are employed in Banc, they may at other times be idle. So that the spectacle would be presented of a set of men, perfectly fit to do a particular duty, not allowed to do it, and remaining unemployed; while another set of men are greatly overburdened. If, again, the second set of men are increased in numbers they would be necessarily, to a great extent, the same men employed under other names, and with higher rank, to do the same duty which, with less rank, they are perfectly competent to perform.

"Smilar considerations have led us, on the whole, to the conclusion that the interlocutory appeal from the judge at chambers in the special cases in which, under resolution 9, it will be allowed should be to the court in Banc, which must, as we have seen, exist for some purposes, and which can transact the appeals from judges' chambers more expeditiously, and probably with less expense to the suitor, than the Court of Appeal.

"To prevent misconception, it is desirable to point out that the proposed court in Banc is in no sense a perpetuation of the old system of divisional courts, nor any impediment to the system (which we approve) of trying matters of first instance before a single judge. The business of the court in Bane, with the exception of the few important motions to which we have alluded, will be exclusively appellate business, and in most of such cases its decision will be and ought to be final, although in the heavier and more im. portant new trial cases, and in all in which special leave is

obtained, we prefer to leave an appeal from the court in Bane to the Court of Appeal. But we are unanimously of opinion that, in these appellate cases (the number of which will necessarily be few), the Appellate Court, which is to review the decision of three judges, should itself sit with a quorum of not less than five. We also think that the present divisions of the Court of Appeal, which, for ordinary purposes, consist of three judges respectively, should be empowered, in case of difference of opinion, to convene a court of five and to direct a re-argument before such reconstituted court. At present it not unfrequently happens, owing to a division of opinion in the Court of Appeal, that two judges of appeal overrule the view of one of their own number as well as the judgment of the court below-a rasult which cannot be satisfactory to the public or the profession. These recommendations, if adopted, would, in our opinion, reduce the number of appeals to the House of Lords, the enormous costs attending which are well deserving of your lordship's attention.

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

"23. All appeals from the court in Banc shall be to a Court of Appeal of not less than five judges.'

"An appeal from the decision of an arbitrator upon a compulsory reference ought, it would seem, to be allowed under the same conditions. The committee, therefore, recommend that :

"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 Banc, whose decision shall be final, except with their leave, or in case of difference of opinion, or where the subject-matter of appeal exceeds £500.'

"Costs.

"With respect to the costs of the cause,' it appears to us that, while the Judicature Acts give the judges in most cases absolute discretionary jurisdiction over them, it is difficult and often impossible satisfactorily to exercise these powers in matters of detail. We recommend that the taxing master should have full power of dealing with such costs as may appear to have been incurred unnecessarily or in consequence of the unreasonable conduct of either litigant in the course of the action.

"Further, it is, we think, desirable, so far as practicable, to guard against a practice, said to be on the increase, of commencing actions in one division of the High Court rather than in another, with the view of obtaining increased costs. litigation are intended to apply to the class of cases which The remarks we have made with reference to the costs of should be dealt with in the Queen's Bench Division of the High Court. We have not been asked to consider, and we do not presume to offer any remarks upon the system of costs in the Chancery Division, but we cannot avoid saying that it is a subject most urgently calling for the attention of your lordship. It will, moreover, be obvious that many of our recommendations, if well-founded as respects business in the Queen's Bench Division, must be equally so as respects other point out that the expense and delay which the present divisions of the High Court, and it is hardly necessary to system of pleadings involves must practically be far more serious in the Chancery Division, especially in those cases in which the defendants are numerous and sever in their

pleading. We have, therefore, unanimously agreed on the

following recommendations :

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

"CIRCUITS.

"We have not in this report dealt with the question of circuits a matter, no doubt, essential to the proper arrangements of the judges of the Supreme Court and the business. to be transacted by them. It is one, however, of some complication and involves the consideration of many det ils, and