LOCAL PRXTORS.
THE equitable jurisdiction just conferred on County Courts has not attracted so much of public attention as so con- siderable a law reform deserves. Viewed by itself it is the most substantial triumph yet achieved by the advocates of " cheap law," but taken in connection with the results which it may be presumed will flow from it, it is the most important legal measure of our time. The changes in 1845, when the County Courts were first established, and in 1852, when the new proceduresin Chancery and Common Law were introduced, were very beneficial, but they did not in any way affect the character of our jurisprudence. If the new scheme succeed it will be followed by a thorough change in our judicial system. All reformers are disposed to justify the changes which they advocate, upon the ground that theirs is a work of restoration rather than of innovation. There was a time in our history when the clerical Chancellors, despising the jargon and rejecting the technicality of the Common Law Courts, administered cheap and speedy justice in the English tongue to rich and poor alike, and' we may perhaps, without being charged with being too sanguine, look forward to the time when our local Courts of Chancery Will deserve the eloquent eulogium passed by Lord Ellesmere upon the High Court in his time. " It is the oracle of Equity, the storehouse of the favour of Justice and of the liberality Royal, and of the right prxtorial, which openeth the way to right, giveth power and commission to the Judges, hath jurisdiction to correct the rigour of the law by the judgment and discretion of equity and grace. It is the refuge of the poor and afflicted. It is the altar and sanctuary for such as against the might of rich men and the counten- ance of great men cannot maintain the goodness of their cause and truth of their title; the entry and door whereof ought patere omni postulanti omnibus kris, nulli tarnen hiare." Local courts of equity are not new in this country. The Court of Great Sessions in Wales had an equity as well as a common- law side, and its abolition was not caused by any objections to the principles which governed its decisions, but rather because of the dissatisfaction felt at the manner in which it was practically worked. The Vice-Warden of the Court of Stannaries in Cornwall and Devon has an important equitable jurisdiction. But the most flourishing existing local court of equity is the Court of Chancery of the County Palatine of Lancaster, the jurisdiction of which is unlimited in point of amount. In this Court a great amount of the chancery business of Liverpool, Preston, and Manchester is transacted. The Vice-Chancellor holds his Court on the spot several times a year, and in addition to this sits every week in London during the legal year to hear interlocutory and other applications. The registrars, who are all barristers, are kept constantly employed. The business in this Court would no doubt be greatly increased if the procedure were simplified and the expense lessened. Its present flourishing state is however a sure indication that " country " will not come to "town" for its chancery, if it can get the same advantage in a local court. The new County Court equitable jurisdiction is, however, limited in point of amount. On its common-law side the limit is 501., unless by consent of both _parties. On the equity side the jurisdiction is never to be extended to cases in which the subject-matter of the case exceeds 500/. It is clear that within this limit there will arise a large amount of litigation. An executor wishing to relieve himself of the responsibility of administering a small estate, a mort- gagee desirous of realizing his security, a tenant anxious to obtain a promised lease from his landlord, or a partner (aim- pelled to dissolve and wind up the partnership affairs, may all
pbtain the relief they require almost at their own doors. Presenting such advantages, the local Courts of Equity cannot fail to become popular institutions. Every attorney will have a good word to say for them, and will perhaps thus become reconciled to the losses laid to the charge of the last law reform—the Land Transfer Act. It may indeed be objected to the new scheme that the necessary complication of even a County Court chancery suit will bring an undue profit to the attorneys, and a law reform which enriches the lawyers will be looked upon with suspicion by the public. But this price may well be paid for the change, if it should ultimately be productive of the results which we anticipate.
It will have been gathered from what has been said that a great proportion of the cases which will come before the judges on the equity side of their courts will be connected with questions of account. Will the present staff of the County Courts be able to deal satisfactorily and speedily with such matters ? This remains to be seen. We-think, however, that the registrars will prove unequal to the duties imposed upon them. We believe that it will be found necessary to follow the example of the Chancery Court of Lancashire, and to appoint barristers to act as registrars. At any rate it occurs to us that the cases of account which will come before those Courts will present an opportunity of inserting the thin end of the wedge in the direction of Tribunals of Commerce. In almost every Continental nation these courts work with admirable success. In France the tribunal is composed wholly of merchants of standing in the locality, who sit without salary for the purpose of settling disputes relating to mercantile contracts. In Germany the professional and commercial elements are combined. It is probable that if tribunals of commerce are established in England we shall follow the German rather than the French model. The experience derived from arbitration cases is in favour of professional as against purely lay arbitrators, and the feeling of the country runs so strongly in accord with that of the prisoner who ob- jected to be tried by a serjeant, upon the ground that he was only " a journeyman judge," that it is not likely that any, tribunal of commerce established in this country would retain the public confidence unless the presiding judge were a thoroughly-trained lawyer. The Merchant Shipping Disputes Bill, which has been lately pressed by the Newcastle and Gates- head Chamber of Commerce upon the attention of the President of the Board of Trude, contemplates a court consisting of a lawyer as president, assisted by two merchants as assessors, and it is believed that when Parliament meets a measure of this kind will be brought before the House of Commons. The success of such a scheme may depend to a great extent upon the working of the new County Court Act. If a desire be shown by the public to avail themselves of .the local courts in such matters of importance as come within the new jurisdiction, we shall be encouraged to extend the in- fluence of these courts still further, and to make them the centres of a mercantile jurisdiction far more important. Of course the staff of judges or assistant-judges would have to be increased, but the passage through Parliament of the Bill to which we have referred would be greatly assisted, if the County Court judges could be pointed to as the ready-made presidents of the new tribunals of commerce.
There is, however, another point on which we may look forward with hope to the effects of the new County Court system. Perhaps next to a measure for the speedy transfer of landed property no suggested legal reform has been more popular than what is termed " the fusion of law and equity." It was to a great extent to this feeling that we owe the passing of the Courts of Justice Bill of last session. While the Court of Chancery sat in Lincoln's Inn and the Courts of Common Law at Westminster Hall it was felt that the chances of the union of the two systems of jurisprudence were small. But bring the Courts under one roof, said the advocates of fusion, and it will soon cease to be a blot upon our judicial system that a suitor should succeed one day in an action in a Court of Common Law, and on the next be robbed of the fruits of his success by the decision of a Court of Equity. We think that too many hopes have been built upon the effect of the mere change of locality of the Courts. The Courts of Chancery and Common Law have sat under one roof in the "Four Court" at Dublin for a great many years, without any effort being made towards a fusion of the law regu- lating the decisions in the separate jurisdictions. The fact is that so long as the Courts are separate and the judges distinct the union is almost impossible. The first real step towards the fusion of law and equity is to vest common-law and equitable powers in one and the same judge. When this double jurisdiction has been es-
ercised by a single judge in the same court for a sufff- ciont time, the principles of 'law and equity will become so intermingled that they will imperceptibly become one. A judge who is called upon in the exeroise of his equitable juris- diction to grant an injunction to restrain the execution of a judgment decreed by him on the previous day on the common- law side of his court, will soon feel the absurdity of his posi- tion, and the necessity of the case will make him an advocate' of the principle of fusion. It is true that in several States of America the two systems have continued to subsist side by side, but in most of these cases the legal and equitable powers have not been vested in the same judge. Kent in his Com- mentaries deplores the admission into the code of procedure of tho New York State in 1848, of provisions enabling one court to discharge legal and equitable functions as a rash and unwise innovation, likely to be productive of groat confusion. The system, however, was acted upon, and after a few years' practice we are not surprised to find an amendment introduced into the code, that legal and equitable relief might be sought in the same proceedings, although the one may be inconsistent with the other. As soon as this stage was reached the fus'on of law and equity was complete. A similar result will, we think, in course of time flow from the new equitable juris- diction in the County Courts, and to the extent of its limited jurisdiction the union of law and equity will then he achieved. But if this take place it will not stop there. If the local courts become popular, the next step will be to remove the limit as to amount within which the jurisdiction is to be exercised, and to establish local Courts of Equity throughout the country similar to the Chancery Court already existing in Lancashire. And if to the judges of these courts are committed the super- intendence of the tribunals of commerce the same process will be again gone through, and the common law of contracts will, under the supervision of a judge invested with equitable powers, be modified and regulated by the rules of equity. Fusion will then have reached another stage. The last step- will be taken when the Lord Chancellor and every common- law and equity judge are empowered to discharge the double function. It would be idle to deny that this stage is as yet a great way off, still we may hope that under wise jurists and- legislators it may be attained.
From what we have said, it will be seen that it is a matter of the first importance that the County Court judges should be chosen from the ablest men at the Bar who are desirous to obtain the appointments. We believe the present staff of judges consists, on the whole, of men of ability and patience. There are some notable exceptions, of whom it may be said that their errors do more credit to their hearts than to their heads. Quito recently the judges at Westminster Hall were obliged to remind a County Court judge, who had been chosen from the Equity Bar, that a defendant was entitled to justify a "forcible entry" upon property. The judge had considered that no one ought under any circumstances to take the law into his own hands. But this and other well-known instances of
incapacity are rare exceptions. The establishment of the new jurisdiction (which will probably drive many of the present judges into a retirement from their duties), renders it still more
essential that our local praetors should be jurists as well as active men of business. The recent appointments made by
the present Lord Chancellor have not been received with en- tire satisfaction by the profession. It may be natural that a Chancellor who is seventy-five years of age, and has sat as a judge for nearly thirty years, should consider a junior of forty years' standing the most fit person to be appointed a County Court j udge, and the great ability, long professional experience, and admirable personal qualities of Mr. G. L. Russell will recon- cile the profession to an appointment which would otherwise have been criticized. But we do most emphatically protest against these valuable judicial appointments being conferred upon barristers, even though they may be Queen's Counsel, who
have retired from business, or whose business has retired from them. There are plenty of able and energetic men practising at the Bar who would most gladly accept these offices. If we are to organize a new judicial system, by all means let us avail ourselves of the best help that can be obtains I for the work.
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