« ElőzőTovább »
but we trust that our preceding remarks will suffice to direct the attention of our readers to the blue-book itself, which is worthy of a careful perusal. That its suggestions will give rise to very divided opinions we cannot doubt. It was obviously impossible that all classes of objectors should be satisfied. Although we think that some of the recommendations fall short of what is required, yet upon the whole what is proposed is a step in the right direction, and we are not disposed to quarrel with a good move merely because it does not go far enough. Much of the benefit which will result from any such code of pleading and practice will depend upon the way in which it is carried out by the courts and judges. What we desire is the combination, so far as is possible, of theoretical completeness and practical efficiency. But the latter is the more important element, and the former must give place to it if necessary. Happily there are at the present time lawyers of enlarged minds, and averse to technicalities, who occupy the bench of the superior courts, and we have every reason to hope that we may welcome a new era in our judicial system; that the substantial merits of every question will be discussed disembarrassed of any of those forms and technicalities which have hitherto brought such obloquy upon the practice of our courts of justice. If the recommendations of the Commissioners are adopted by the legislature, the result will be, that suitors will have recourse to the superior courts instead of carrying their plaints to inferior tribunals, which, however competent be the judges, or efficient the system there pursued, cannot enter into competition (except in trivial cases) with courts presided over by the ablest lawyers which the country can produce. It is idle to suppose that the public will be content with any but the best law, if it can be procured without ruinous expense. Considerable expense must, and always will be incurred in the prosecution of any contested right. It is a mistake to apply the favourite principle of the day, the procurement of everything at the cheapest possible rate, to the administration of justice. A reasonable diminution of cost is what suitors are clearly entitled to, but they will sooner or later discover that, beyond this point, any cutting down of expense will be productive of positive loss.
ART. IX.-THE NEW COUNTY COURT RULES.
VERYTHING tends to enhance the importance of the
E opinion, the press, Brougham, County CONG. public
and parliament, and all the other great organs of change in this country, seem to combine their efforts to make these courts the general arbiters in litigation, and to invest them with every kind of legal and equitable jurisdiction.
The bills now and lately before parliament are not the only proofs of this. We have a preliminary sample of the same intention in these New Rules, which, with exceedingly scanty notice to the country, have just come into operation. They are the result of the labours of five of the County Court judgesSerjeant Dowling, Messrs. Brandt, Espinasse, Gale and Furner, -in accordance with 12 & 13 Vict. c. 101, s. 12; and having been approved by three of the judges at Westminster, have become law, and supersede all the rules hitherto in use under 9 & 10 Vict. c. 95, s. 78.
They are certainly an improvement on the old rules; nevertheless they exhibit in some instances a desire to increase rather than lessen the already redundant power of the judge, and also some errors, which a little more care in revision would have avoided.
We purpose commenting on all the more important rules.
Rule 2 requires the judges to appoint, after January 1st, 1852 (why not sooner?) the court days and hours for three consecutive months, and thenceforth of each following month three months beforehand. There is no kind of practical necessity for this, to announce them for each month fourteen days beforehand would answer every purpose.
Rule 5 secures costs when infants sue by means of "next friends," for which they are made responsible. This is a good rule. Rules 6-17 define, and more stringently determine, the clerk's duties; and are on the whole useful.
Rule 10. This rule appears to be oddly framed; the meaning is doubtless to apply the EXCEPTION to the assistant clerk, or clerks, provided by him, but it also seems to extend to the chief clerk.
Rules 18-24 particularize and enlarge the duties and responsibilities of high bailiffs. High bailiffs are occasionally a little above their work; and it is a salutary regulation that
they shall in all cases of absence account for it, and enter the cause in the minute book at the succeeding court. He is also to send to the clerk a statement of all the summonses served eight days before the day of trial, and he is required to account minutely and frequently for all monies that he has received, and of what has been done under every process issued to him. They tend to increase his accountability rather than his work.
Rule 25. Every kind of suit is now to be called a plaint; and to such an extent is laxity to be carried, that "if the plaintiff is unacquainted with the defendant's christian name," it may be omitted, and he may be sued "by his surname, or by it and the initial of his christian name."
How this initial is to be arrived at in case the name itself is unknown, will, we fear, puzzle the country clerks sorely. Perhaps the judges will illumine them. But the suing of "Smith" or" Brown," is not greatly mended in precision by prefixing peradventure the letter J! If no Brown or Smith appears, the same proceedings under section 79 and 80 may be taken as if the true name, &c. had been stated, and all subsequent proceedings (commitment included) thereon may be taken in conformity with such description.
Rule 26 goes in the same direction. Claims by husbands in their own right may be joined with claims in respect of which the wife must be joined as a party, i. e. distinct parties and causes of action in the same suit!
Rule 27. A good one, requiring as many copies of particulars to be delivered as there are several defendants.
Rule 28 also provides for full particulars of the breaches of covenant, on which suits are brought to recover penalties under the 8 & 9 Will. III. c. 11.
Rule 38 requires that the judge shall, before leave is granted to issue a summons out of the district, be "satisfied by statement on oath, that the party applying has a cause of action." This is a change from the 60th section of the act. At the same time, it will be convenient that he should ascertain whether it arose within his district, or whether the defendant resided there within the preceding six months, as this requirement is not superseded by the new rule. The judge ought not any longer to delegate this duty to the clerk.
Rule 43 further defines the service of summons, and the succeeding ones prescribe how it shall be served in several special cases.
Rule 53 enlarges the already extraordinary powers of the judge, and permits him to proceed even though he be not satis
fied that the summons has come to the knowledge of the defendant ten days before the hearing, and in his absence.
Rule 62. This rule requires the defendant, when he pays money into court, before the return day of the summons, to pay the fee for notice of payment to the plaintiff. At the end of the table of fees, the notice of payment into court" is without any qualification stated to be a fee "payable by the plaintiff." This fee is however made payable by defendant before the return of the summons.
Rule 117 authorizes the deduction of this fee from the plaintiff, on all payments after order.
Rule 65 is an exceedingly good one, and disallows expenses of proving a document wherever the parties proving it have not availed themselves of the powers the rule gives of serving notice on the other party to inspect and admit it. The judge may adjourn the trial, moreover, to give time to do so. This will much facilitate the proof of such documents.
Rule 66, with equal propriety, provides facilities to plaintiffs to abandon suits, without further costs, after notice to defendants.
Rule 67. Where notice of set-off or of other defences has not been given, the omnipotent judge may adjourn the case, should the plaintiff refuse to allow the defendant to go into such defence then and there!
The following is a new rule:
Rule 74. "Where the defence is a tender, such defence shall not be available unless, before or at the hearing of the cause, the defendant pays into court (which may be without costs) the amount alleged to have been tendered."
The distinction between tenders and payment into court differs now only as regards the costs.
The following is another tolerably plenary power in the hands of Messieurs les Juges!
Rule 86. "Where anything required by the practice of the court to be done by either party, before or during the hearing, has not been done, the judge may, in his discretion, and on such terms as he shall think fit, adjourn the hearing, to enable the party to comply with the practice.'
Rule 89 enacts, that
"No attorney shall be allowed to appear for any person in a county court, until he has signed a roll or book, to be kept by the clerk for that purpose, but no fee shall be payable for that purpose."
This is rendered quite useless by the precious amendment in
the new bill about to pass, that counsel, attorney, or any one else, may appear for any party to any suit.
The powers of amendment, their extent and importance, may be judged of by the following specimens :
Rule 94. "Where a person other than the defendant appears at the hearing, and admits that he is the person whom the plaintiff intended to charge, his name may be substituted for that of the defendant, if the plaintiff consents, and thereupon the cause shall proceed as if such person had been originally named in the summons, and, if necessary, the hearing may be adjourned on such terms as the judge shall think fit, and the costs of the person originally named as defendant shall be in the discretion of the judge."
Rule 104. "Where at the hearing a variance appears between the evidence and the matters stated in any of the proceedings in the county court, such proceedings may, at the discretion of the judge, and on such terms as he shall think fit, be amended, and such amendment, as well as amendments as to parties, when ordered, shall be made in open court, and during the sitting of the court."
If the judge finds there are too many defendants or plaintiffs, or too few of the latter, the judge by a stroke of his pen can increase or lessen them accordingly, and proceed as usual, to use the words of Rule 101, "as if the proper persons had been originally made parties."
Not only is the judge to have all kinds of power to do all manner of things, but he is required and compelled, as we read Rule 107, to interfere and "order" even in minor matters hitherto left to the discretion of the clerk; ex. gr.
Rule 107. "The judge shall in each case direct what number of witnesses are to be allowed on taxation of costs, and their allowance for attendance shall be according to the scale in the schedule, unless otherwise ordered, but shall in no case exceed the allowances therein mentioned."
Rule 111. This rule provides that the costs of "unproductive" warrants against the goods shall not be allowed against the defendant, unless, &c.
Rule 113 says that the costs of executed warrants shall be allowed, unless, &c.
Now a warrant may be executed, though perhaps unproductive, by reason of claims for rent, &c., after bailiff has been in possession three or four days.
Rule 124. This rule, as to concurrent executions issuing into different districts, may work great hardship on a defendant. is possible that a debt and costs may be levied in two or three places by different high bailiffs. If so, how is the defendant to obtain redress for the damages he may sustain?