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Court of Exchequer, for the four years preceeding 1825, the last period for which the returns of all these courts have been made:
It may be objected that this table does not include the crown cases brought before the Court of Exchequer, nor the business done on the equity side; to this it might be replied, that only the civil cases taken to the Court of King's Bench are given, and that the other matters brought before that Court are more than equal to the crown and equity business of the Exchequer but, for our present purpose, the objection is quite immaterial. It will not be denied that the King's Bench has more business brought before it than it can dispose of, and that the Court of Exchequer could do four times as much as it does at present, including the crown and equity business. Some of the business of the King's Bench cannot be brought to the Exchequer, but the civil cases can. While, therefore, there were any arrears in the Court of King's Bench all the civil cases would necessarily be taken to the other courts, where there were no arrears, if there was not some fault in their constitution or practice. That such is the fact then is clearly shown by the table above given, by which it appears that twentyfive times as many causes are taken to the King's Bench, which has not sufficient time to hear them, as are taken to the Exchequer, where they would be immediately tried and decided.
The remedy, which we should propose for this evil, would be simply to abolish the exclusive privileges of the sworn attorneys and clerks in court, and to permit all attorneys to practise in the Exchequer in the same way that they practise in the King's Bench and Common Pleas. On doing this, it would be necessary to give a compensation to the present attorneys and clerks in court for loss which they would sustain by the abolition of their offices. This would not, however, amount to any large sum; and we understand that the attorneys have signified that they would not oppose its being raised by an additional duty upon the annual certificates of such of them as might be desirous of practising in the Court of Exchequer, if the government should refuse to accede to the measure on other terms. (c) We, however, are of opinion that
(c) A petition to this effect has, we understand, actually been presented to Mr. Peel by a large body
of the most respectable London attorneys.
an expense of this description ought to be borne by the country at large, and not by those only who are compelled to have recourse to law, upon whom a tax on attorneys must ultimately fall; as we consider that the proper administration of justice is one of the first purposes to which the national funds ought to be applied.
The Exchequer derives its equity jurisdiction from its having exclusive cognizance over all matters connected with the revenues of the crown. The primary and original business of the equity side of the Court was to call the king's debtors to account by bill filed by the Attorney-General. As, however, the officers of all the courts have the privilege of suing and being sued only in their own court, so the king's accomptants and debtors were privileged to sue all persons in the same court of equity that they were themselves called into. Afterwards all other persons were permitted to sue in the court on making a fictitious suggestion in their bill that they were debtors and accomptants to the king. This suggestion was not allowed to be contradicted. It is now even not considered necessary, and the Court will not suffer its general jurisdiction as a Court of Equity to be questioned.
The Court of Equity of the Exchequer is held in the Exchequer Chamber, and is supposed to be held before the Chancellor of the Exchequer and the four barons. The Chancellor, however, in fact never attends, unless when the barons are equally divided in opinion. The last instance which happened of the Chancellor's sitting in judgment was in the case of Naish v. the East India Company, in 1735, when Sir Robert Walpole was Chancellor. Before the Act of the 57 Geo. 3, c. 18, equity causes were heard before all the judges of the Court, who for that purpose adjourned out of their ordinary court into the adjoining Court of the Exchequer Chamber. All motions, however, and other interlocutory matters were heard in the ordinary court. As there were never more than two out of the four judges who were equity lawyers, two of the barons were not of much assistance in hearing equity causes (d); but although they might have absented themselves, as in fact they frequently did, they were not able to hear any other business while the Court was sitting in the Exchequer chamber. This evil was in part remedied by the Act of the 57 Geo. 3, c. 18, by which the Lord Chief Baron was authorized to hear and determine equity causes sitting alone, while the other barons continued to dispatch the ordinary business of the Court. By some absurd inadvertency the act was so framed that it has been held to give no authority to the Chief Baron to hear many kinds of inter
(d) At present there is not even one equity lawyer among the puisne barons of the Exchequer.
locutory proceedings, which must still be heard before the barons sitting in the outer court, who are generally common lawyers, entirely ignorant of equity, and equity practice.
This act, however, rendered the Exchequer a more efficient court of equity than it was before. But still it has only remedied a small part of the evil. The Chief Baron though enabled to hear causes alone while in town, is still absent from London on the circuit with the other barons nearly three months of the year. During that time the Court of Exchequer is entirely shut up. This is the great defect in the Court. There is such a constant necessity for repeated interlocutory applications in the progress of a suit in equity, for injunctions, for the appointment of a receiver, for payment of money into or out of court, and other similar purposes, all of which are delayed in the Exchequer during the absence of the barons on circuit, that very few suits will ever be carried to the Exchequer while it is constituted as it is at present. Only 47 causes, we believe, were set down for hearing during the whole of last year. The only remedy for this is, to follow up the Act of the 57 Geo. 3, by entirely separating the equity from the common law side of the Court, and to appoint another judge who should be constantly sitting in equity. The plan which has been suggested and to which we cannot see any objection, is to create a Vice-chancellor of the Exchequer, who shall sit alone in equity during the whole year; leaving to the Lord Chief Baron and the other Barons the common law and revenue business, and the duty of going the circuits (e).
This measure would at once, without any great or striking change in our judicial system, which is so much dreaded by many persons, furnish an additional efficient Equity Court regularly sitting. That such a court is wanted is sufficiently proved by the present state of the business in the Court of Chancery. Of causes waiting either for an original hearing, or hearing after a reference to the Master, there is at the present time an arrear of 530 before the Vice-chancellor, and 250 before the Master of the Rolls. The Lord Chancellor now hears causes only on appeal from these two judges, and there is an arrear of about 120 of these appeals before him. There is also a large number of causes waiting for judgment, and an arrear of pleas and demurrers. It is admitted on all hands that these arrears could not be disposed of in the Court of Chancery as at present constituted under many years, even supposing no new business was brought before it. To increase the number of the judges of the Court of Chancery would not how
(e) It might perhaps be better to make the Chancellor of the Exchequer what, as his name purports he
originally was, a judicial officer, and to give the finance business of the government to some other minister.
ever remedy the evil, unless a similar increase was made in the number of the subordinate officers. The delays are greater in the Masters' offices than in any other branch of the Court; and the registrars are so overwhelmed with business, that it is often several months after a decree has been pronounced before a copy of it can be obtained from their office. In the Court of Exchequer, on the contrary, we find a complete set of officers without any thing to do-The whole machinery of a Court of Equity waiting for employment. Besides the additional judge, it would not be necessary, we believe, to appoint a single officer, except perhaps a registrar to attend in court and take minutes of the decrees, which the Masters, who do that duty at present, would then by their other avocations be prevented from doing. Six or seven thousand pounds a year would cover the whole expense of the proposed alteration; a sum quite insignificant in comparison with the benefit to be gained from the measure.
The appointment of an additional equity judge to the Exchequer would also be of very great advantage in another respect. The Chief Baron might then be taken from the common law instead of the equity bar. By this the Exchequer would be greatly improved as a court of law, and the administration of justice on the circuits, and at the Old Bailey, would be benefited. It is by the Chief Baron that all actions brought in the Exchequer in London and Westminster are tried, and he goes the circuits, and sits in the criminal court at the Old Bailey, in the same manner as the other eleven judges. Now, however capable an equity lawyer may be of deciding upon points of common law, when he has sufficient time given to him to form his opinion upon them, and if necessary to consult his books, he will rarely be able to decide off hand upon the numerous questions of evidence and pleading, which are constantly arising in the progress of a cause at nisi prius, and in the criminal courts. These questions are wholly foreign to his former education and practice. He is nevertheless called upon to decide them instantly without any time for consideration, or reference to authorities. This has been one of the circumstances that has tended to bring the Exchequer into disrepute as a court of law, and even the opening of the Court in the manner we have before suggested would not be enough to render it efficient, without a change also in this respect.
We have now endeavoured to point out what we conceive to be the peculiar defects of the Courts of Common Pleas and Exchequer, and the manner in which those defects might be remedied, so far at least as to put these Courts on an equal footing with the others. Farther than this we have not attempted. Our object has been only to show in what manner these Courts, which are at present comparatively inoperative, might be enabled to relieve the King's Bench and Chancery, and particularly the latter, from a
part of the accumulated load of business with which they are incumbered, and which renders them at present quite unable to hear and decide the matters brought before them with that deliberation and dispatch which the suitors have a right to expect.
In order to ensure a more equal partition of business among the several courts, it has also been proposed to divide the subjects of jurisdiction among them, and to assign particular matters to each; as for instance, to give to the Exchequer all questions relative to tithes, charities, and benefit societies, in which the Court of Chancery has now concurrent jurisdiction. We, however, are very averse to any proposition to divide the law into a great many separate branches, to be administered by different jurisdictions. We have already too many such divisions; and the incompetence of judges to decide upon points of law, which are not thought to fall within their peculiar jurisdiction, often leads to the greatest inconvenience.
Before we conclude, we should observe, that a slight discussion took place in the House of Commons upon the Courts of Common Pleas and Exchequer, in the debate upon the judges' salaries in the year 1825. In the course of the discussion Dr. Lushington and Mr. John Williams alluded to the present inefficient state of these Courts, and insisted upon the necessity of opening the one to the bar, and the other to the attornies. Mr. Peel in the course of his speech in the same debate said, "that he looked with favour upon some of the propositions of the member for Ilchester (Dr. Lushington), particularly upon that of throwing open the Court of Exchequer to all attornies. Whether it would be equally right to throw open the Court of Common Pleas to all the rank and file of the profession, he would not at that moment pretend to determine; it was a question of some importance, and required greater consideration than he had yet given it." We hope that since that time consideration has been given to the subject, and that the present session will not pass without some measures being taken to remedy the evils complained of.
ART. VIII.-WAGER OF LAW.
Reports of Cases argued and determined in the Court of King's Bench, in Hilary Term, 1824. By Richard Vaughan Barnewall, of Lincoln's-Inn, and Cresswell Cresswell, of the Inner Temple, Esqrs., Barristers-at-Law. London, 1824.
THERE is a charm in antiquity, the force of which we all feel and acknowledge. It lends an additional value to many of those things that we esteem the highest. We love an old friend, a bottle of old wine, an old coin, an old picture, an old statue, an old