Northern Times.
Liverpool, Merseyside, England, 1859-08-06 00:00:00

The cambroltsness of the °ld chancery procaine arose in

nse working unaer
were sought in the old common

'pima and

simple issues which

uld be

who conducted in - writing a' ‘preliininarir and
Torously logicataltercation in every case, and stopped when
ey arrived at ai contradiction in point either of law or of
et. in a simple case, nothing could be better,—but when
.cts were numerous or uncertain, rights complicated; and
to legal results of the facts doubtful, the seeming

ccuraCy of the, system was very fallacious, and a slip iii
lie logic .of the special pleader might lose a eases the

stice-of which was evident When the facts were se

forth at large, and when the requirement of si4le and
single issues was dispensed with: The difficulty of' stating,
according to the rules of special pleading, a case the justice
of which depended on a great variety of entangled circum-
stances, no doubt had its share in producing the narrow'and
technical body of judge-made law, from the rigours of which
suitors sought - relief by an appeal to
.the more liberal
maxiMs of equity. Its effect in this way was probably in-
direct, because every question, however complicate
with sufficient patience be unravelled into single issues, or
at all events, into a choice of single issues; but it -is Much
easier for both practitioner and judge to say—" 'We will
have nothing to do with these ethiiplicated and out-of-the-
way rights. If you can stato a plain promise broken, a
plaintrespass committed, or a plain fraud perpetrated, we
will .help you. If not, we must refer you `to conscience, and
wash our hands of the dispute as a matter of • Some-
thing of the same kind still happens when a court of any kind
refuses to interfere with a mere •breach -of honour. But,
however this may have been, the fact is that the Royal
Chancery was invoked to redress the injustice Worked by
the stiff and unyielding character of the common law re-
medics, and that the system of strict special pleading was
disregarded by the new judicature, as it must have been by
any which 'profesSed to administer discretionary justice in
complex cases, unfettered by rules previously ascertained.
The suitor told his story in his Bill pretty mach as he liked,
and the defendant did the same in. his Answer, and then'the
cause was heal d. Moreover, the Court of Chancery dis-
regarded to a certain limited extent the rule of common law,
which did not allow eparty to be a witness in his' own case.
The plaintiff could oblige the defendant to answer upon oath,
and a written reply upon oath to written questions drawn
up beforehand, often with an imperfect knowledge' of the
facts, was necessarily fall of qualifications and exceptions,
and gave rise (as it still does) to a vast amount of fencing
and answering by the card. Technicality then came in,
and did its work as diligently as ever it had done at com-
mon law. The verbiage and repetition of Bills and AnsWers
became a public scandal, and great masses-of paper filed in
the shape of answers, when no answer at all was needed,
swelled the_ briefs of counsel and the bills of solicitors.

1, may

This/ has all been retrenched, the simple expedient of
printing.bills having proved a most effectual aid to other re-
forms. Nor man, for shame, can look his own verbiage in
the face in print, as he used to do in stationer's round text ;
and .a modern Bill in Chancery is perhaps as
.good an ex-
ample of lucid, rigorous, and ccneise statement, in an apt and
polished style, as can be found anywhere out of the highest
class of historical literature. Bills, indeed, now sometimes
show too much artistic compression to be easy reading
Another less superficial defect has only been partially
removed, and forms one of the chief subjects of the Liver-
pool report. When there were but one or two equity judges,
they could not on isibly deal with all the complicated facts
and issues raised. The original decree in a suit often con-
sisted of little else beside directions to subordinate assistants
to w,-,rk o;:t all the facts. The assistants were " the Masters
in Chancery," and this " working out the facts" was
what took place when "the suit' was in the Master's
Office." The Masters became little judges ; the prolixity of
the bill and answer was emulated and surpassed in their
procedure; they took accounts in a lengthy way in which no
human being ever took accounts before, and there was no
mode of correcting their errors small or large, without.
another solenin hearing, often resulting in re-references to-
the bottoinless.gulf of "the Master's Office." It has been
attempted to meet this evil by abolishing the Masters, and

(in appearance) by requiring the judgesto`do all the work
with the assistance of clerks. Lord St. Leonards laid par-

ticular stress on the importance of keeping th
n,l-1 'AM. Le

barrisiers' do not argue before them and provision is'made
for referiiiig at once from the Clerk to the judge in

chambers

prolixity ; but its success has been but partial, owing to the
inadequacy of the numbers of the judicial staff. • The' clerk
is fast becoming an independent judge with much more
work than he can do, and the judge has no time to
check the clerk. The Liverpool Law Society confine
their observations very much to the delay thus _engen-
dered:, and this is a matter of which they are peculiarly

qualified to judge. . It is right, however, to say plainly thdt
it is not the only evil. It is no disparagement to the very
able and elnsciontions solicitors or former. masters' clerks,
who arc now judges' clerks, to say that they are many of
them quite unequal to tasks with which on their original
Dointment they were not intended to cope. They have

_
constantly to decide off-hand points of law and equity on
which eminent judges might differ, without the aid of hearing
any arguers more competent than solicitors' clerks ; and it is
not wonderful that, under circumstances o f such difficulty, legal
principles_ arc lost sight of in a manner certain to breed

kreat Confu,ion in future

We wi:

instance one

'Clerks' practice, which to any of our readers who are con-
versant with real property law will be decisive of the
dangers of t'lc system. We are told that some of the judges'
clerks habitually authorise mere bailiffs of the court,(ealled
receivers), who are not landlords in any sense legal or
equitable, to grant leases of land. Our lay readers will
appreciate the. effect of this, when. we tell them that if they
buy land subject to such a lease they can neither distrain nor
sue for their rent, but that they can immediately eject their
tenant on. the ground that the lease is nnll and void- The
court might feel bound to redress the mischief irs officer had
caused, but in this way a chancery suit would gTow .out of
every tenancy. _ _ _ .

Tie repoA suggests that every court should have two
judges, eac'i of whom should pass half his time in chambers.
This is no doubt in accordance with. the spirit of the,new
system. The quotations in the report conclusively show
that parliament, intended the judge, and not the clerk, to
supersede the master. Au economical objection may be
taken on the grnmad that high judicial talent would some-
times be wasted on administrative details ,
that this disadvantage would be far more t
by the avoidance or serious- blunders, and

Pensated

)y the opportu-

nities which Would occur for adaptine•
the roue'
the thousand small,r exigencies which cannot be anticipated
on the hearing of a complicated cause, when judge and
_ nlinefinne nf 4-1,,

course.

pt on the strain

litigation.
Anothcr sing

for an increase in the number of
.„,ma of -We are disposed

to-go still I

,rars (whose

filie decrees and orders of the

buSiness,it is to
judges, to iTtei:lc
put in all tile: (e`
brief notes ,
tested at (
parties)i

dice, in consent cases, and often to
consequential directions, from the
a with the form of the order eon-
the solicitors for the contending
in the same intimate relation with
13 intended to he. The mode in

the judg,'!;

rouge tlieir difficult and delicate
but every.practitioner knows and

di-er.l:(ls v

,Dense

isputeppon minutes,'

from the n:
i Alm an i

pressure of business, would
[e judges- te.Ove the same attention