The Sun.
London, England, 1865-10-03 00:00:00

The New County Court Rules,

The " orders and rules" for the regulation of the
new equitable jurisdiction of the county courts have
been framed by five judges of those courts, and ap-
proved by the Lord Chancellor with laudable celerity.
The manifest aim of those who drew them up has
naturally been to assimilate the new to the earlier
practice of those tribunals, and to divest, as far as
possible, equity, as law has there already been di-
vested, of the character of an art or mystery, known
and to be exercised only by trained professors.
Throughout, pleading and the general conduct of
the litigation by the suitors in person is evidently
contemplated as a very ordinary incident; the plaints
are allowed to be either written or printed, so that
the amateur in equity will be able to dispense not
merely with solicitor and counsel, but even with a
law stationer; and, as unless by special order of
the judge, matters of equity are to be heard on the
same days as those appointed for the transaction
of general business, the profoundest problems of
trust and real property law may, and doubtless
often will, be treated and settled with as little cere-
mony as a question on the items of a tailor's bill.
Despatch was the object aimed at in the establish-
ment of county courts, and despatch hasbeen hitherto
the great glory of them. What was to be feared in
giving them equitable jurisdiction was that this,
their sovereign excellence, would be tarnished. The
orders and rules obviously contemplate this very
possible pitfall, and it must be confessed, do all that
an a priori system of practice can do to escape it.
Conciseness is the attribute they throughout recom-
mend. The suit is to open with a concise statement
of the plaintiff's case; interrogatories are dispensed
with altogether, and the defendant is to reply, whe-
ther by disclaimer, admission, denial, counter state-
ment of fact, cr demurrer, but at all events concisely.
A threat even seems to be implied as to costs should
the defendant be so litigious as to say aught, at least
before the hearing, on his own behalf; for, though
he may answer the case against him in these specified
ways, it is " provided always that, in exercising his
discretion as to costs, the judge shall consider the
fact of a defendant having or not having availed
himself of the powers given by this rule." Again,
with the like view of avoiding circumlocution, the
evidence is to be taken in court viva voce, and the
much-attacked practice of oral examinations out of
court, and with solicitors as assessors, is re-
stricted (whether with or without the incident
last referred to, the orders say not), to cases
where the witness resides within the jurisdic-
tion of some other county court, when he is to be
examined by the registrar of that court. and his an-
swers to be transcribed by that official. The use of
affidavits to support plaints is not prohibited (it is
made obligatory in trust petitions and applications
for injunctions) ; but, as the other parties, who
must be furnished with copies as long as 10 days be-
fore the hearing, are only " tobe taken to have con-
sented to the use thereof," if they do not give notice
of objecting within five days, and no machinery is
provided by the orders for the courts considering the
objection, and dismissing it if futile, the status of
affidavits is left at present rather equivocal.
We think the " orders and rules" likely to be suc-
cessful in the very essential article of promoting
despatch of business. Doubtless, in some respects,
they will be found vague, in others defective ; for
legal practice, and, of all sorts of legal practice, prac-
tice in equity is least amenable to fore-ordained lines
of route. But time, while it will most surely bring
such imperfections to light, will also best show the
way to cure them ; practice must, in the end, be left
to form itself. We may, however, be pardoned for
noticing two or three points of detail. Thus, we are
inclined to think that, by imposing on the court the
duty of naming a conveyancer to settle contracts of
sale of realty ordered to be sold, and also, in certain
cases, to settledeeds, insteadof establishing once for
all a regular rota of retained conveyancing counsel,
according to the precedents of the superior courts of
equity, a rather invidious patronage will be found to
have been conferred on the judges. Again, the pro-
vision for settling the personalty of married women
appears to us capable of being interpreted so as to
restrict the marital right beyond even the actual
practice of the Court of Chancery. Again, we doubt
whether, in ordering the transfer to the superior
courts of all suits, of which, in the course of time,
the subject matter is discovered to be more than
£5OO, and thus, repudiating the option allowed by
the statute itself (sec. 9) of retaining such suits in
certain cases, the framers of the orders have not, in
fact, abandoned what they were bound to retain.
"Various other flaws, or what appear such, would
doubtless occur to the reader as he glances over the
regulations ; such, for instance, as the absence of
and provision for the examination of witnesses
abroad, and the omission, in the case of those living
in this kingdom, but within the jurisdiction of a
different county court, to give a party to the suit the
opportunity, on guaranteeing the expenses, of bring-
ing them by subpcena to give evidence in person, in
place of the cumbrous written examination before a
registrar.

But the " orders " must be judged, not by refer-
ence to the defects of detail, but by their capacity
for bringing the new equitable jurisdiction into
harmony at once with the common law functions
of the county courts, so as to insure equal expedi-
tion, and also with the actual practice of the superior
courts of equity, to such an extent as to make, in
the probably not rare contingency of an appeal, the
previous hearing in the county court as useful an
instrument for stripping off the mere accidents, and
laying bare the real point at issue, as is the hearing
before a Vice-Chancellor of the Master of the Rolls
of some complicated case, afterwards appealed,
which was originally overloaded with irrelevant cir-
cumstances. The " orders " have, to some extent,
achieved the former result. But, as despatch is
hardly at present the point of honour of the High
Court of Chancery, orders which aim chiefly at the
result are not likely so to mould a suit that the ap-
peal court will have nothing to do but to put the few
finishing touches. It will be indeed be curious to re-
mark how the Vice-Chancellors will at first deal with
these novel suits of equity, with their concise state-
ments often drawn by the plaintiffs themselves, and
sometimes replied to by a counter-statement which,
in the absence of interrogatories to compel a " yes"
or a "no," will often tell a perfectly independent
story, and sometimes even not replied to at all;
since it must be remembered that a defendant, being
under no obligation, but rather the contrary, to put
in a written answer, may reserve his defence wholly
to the hearing itself, and leave the judge to find
out its salient points. Then, too, there will be
all the evidence, not merely to sum up, but to
collect afresh ; for, while in appeals from one
judge of the Court of Chancery to another, the
judge of the court above has (except in the compa-
ratively rare case of an examination of witnesses in
court) in affidavits and the written evidence before
the examiner, precisely the evidence on which the
judge below based his decision, and has little to do
except Compare the latter's judgment with the evi-
dence -which are the premises whence it was de-
duced, the judge in Chancery will have, in case of
an appeal from a county court, none of the evidence
on which that court decided, except, it may be, in
the shape of a few hasty notes.
In fact, the framers of the " orders" seem to have
felt that the introduction into their courts of a suit
likely to produce an appeal ought to be discouraged
as an useless waste of time
and money ; and this
was doubtless their reason for ignoring, as we have
already pointed out, the option given by the Legis-
lature for the prosecution before them of cases sub-
sequently discovered to devolve interests worth more
than £5OO. But we believe that the machinery, vi •
z.,
cases to be prepared by the parties, or, in the event
of disagreement, by the judge, proposed by the
" orders" to meet the contingency of appeals for
which, whether many or few, it was necessary to
provide, is: certain to prove unsatisfactory. The
scheme looks as though the representatives of the
county courts were ashamed of having their per-
functory equity-litigation revealed to the Court of
Chancery in its own proper deshabille, and wished
to shuffle over it a decent legal mantle before usher-
ing it into that solemn presence. But apart from
the fruitful insttter, for controversy in the original
settling of these cases, the necessary absence of any
means of restraining the parties themselves from
controverting before the appeal court the judge-
made statement pf their case, and the extreme

probability that the judges in Chancery themselves
will ever be persuaded to look at facts through the
spectacles of other judges, are not to be considered
as ineradicable vices in the plan.

But the " orders" must not be blamed for having
failed in constructing a practicable staircase from
this sphere to that of the High Court of Chancery.
The two are incommensurable; the very atmosphere
is different. Let the county courts administer their
equity speedily without straining too fastidiously at
the quality. If any of their suitors are dissatisfied,
the courts are open. If the Legislature's attempt
to save petty equitable interests half the expenses of
proceeding necessary for realising them, sometimes
issues simply in a bill of costs, a third more than it
otherwise would have been, it is not the Parliamen-
tary measure, nor the rules framed for carrying it
into execution, but human nature and human affairs
which ought to bear the blame.—Solicitors' Journal.