« PreviousContinue »
Art. I.-COUNTY COURTS.
BUSINESS is flowing from the superior into the County Courts to an extent which threatens to make almost a revolution in legal economy. Its effects on the public as well as on the profession are likely to be exceedingly great. There is scarcely a county at these assizes which is not in all probability giving ample evidence of the new outlet to litigation thus opened.
This influx of business in the County Courts appears to be of three kinds: First, it consists of the small debts, which, under no circumstances, occupied a place in the business of the superior courts; this is partly a transfer from the old Courts of Request, County and other inferior Courts: but it consists far more largely of claims^ which, from the absence, distance, or powerlessness of such courts, were virtually irrecoverable, and which may therefore be considered as new business. In the second place, a number of suits are now brought in the County Courts for claims which must, if at all, have been enforced in the Superior Courts, but which, from the expense thereby incurred, never would have been enforced at all. Thousands of such claims, instead of being compromised or abandoned, are now entered in the new County Courts, and disposed of with almost as little cost and trouble as if referred to a friendly arbitrator. By neither of these classes of business, however, is that of the Superior Courts at all invaded. The third class of suits in the new courts consists exclusively of those causes of action which would have been otherwise tried at nisi prius. This class of cases is, as we have observed, telling upon the courts of nisi prius. Nor alone upon them;—for owing to the
VOL. VII. NO. XII. B
power given to the judges of the Small Debts Courts finally to determine all questions of law as well as of fact, the province is in like measure invaded of all the courts above. We have heard since this act came into force of points of law decided off-hand by judges of the Small Debts Courts, quite as difficult and doubtful as many of those which the judges in Banco take time to consider: yet actions on contracts teem, as every one knows, with nice distinctions of doubtful law, and abound more than any others in a complication of facts. The act, not satisfied with transferring to the New Courts all contracts within the twenty pound limit, extends their jurisdiction to all personal actions, with a few exceptions; it extends also to partnership accounts, and enables legatees to recover in it legacies under a will, and also distributive shares of the property of an intestate. [S. 65.]
We do not complain of this extensive scope of jurisdiction as regards causes of action: the latter provision with regard to legacies is one of great practical benefit, inasmuch as many thousands of legatees have been defrauded of small legacies by rascally executors, solely in consequence of the impossibility of hitherto recovering them. Considering, however, the enormous quantity of points of evidence and practice which each judge of these courts is bound to have at his fingers' ends, if we may be allowed the expression—considering also that the usual avocations and responsibilities of the new judges are augmented by the additional functions of the jury they supersede, we are strongly of opinion, that had the scope of the act been limited, at any rate in the first instance, to debts of ten pounds, prudence would have been better consulted, and the real utility of the measure by no means lessened. In taking from suitors in these courts all power of appeal (except to the judge) for a new trial, powers are vested in these gentlemen, with respect to at least one-half the whole bulk of litigation in this country, far exceeding that confided to the superior judges. We believe we do not overstate the facts. We are no opponents of rational improvements in the administration of the laws, by which the public may benefit, even though the profession might apparently suffer by them; but, on the other hand, we cannot lose sight of the fact that the public interest is itself concerned, that improvements in the facility of justice be not effected at a sacrifice of its quality.
We have no doubt that a great number of suitors, who have recovered their money without trouble or expense, are highly delighted at the new act, and have little reason to quarrel with its judges; nor are those less fortunate parties, against whom judgment has been given, any better qualified to detect the ignorance of law, confusion of its principles, or misapprehension of evidence, which may happen to have misled the judge into error. The popularity therefore of the new measure, great as it may be, is no sure index to its real value. If we find that eagerness to avoid the expense of a deliberate trial has induced men to forego substantial justice in their search after economy, it may eventually prove expedient to diminish the scope and raise the standard of this new branch of judicature.
On the first appearance of this act, we commented on the impolicy of restricting the selection of judges to barristers of upwards of seven years' standing for this office, it being obvious that very few really competent barristers of more than seven years' standing exist whose business prospects are not by that time too good to be sacrificed for ever for no higher salary than the new judgeships promise, and which in many cases will hereafter fall to 7 or 800/. per annum, when the present accumulation of cases is over: and it is by no means incumbent on the Treasury to allow more in the shape of salary, no minimum being fixed by sections 39 or 40. The result necessarily was that not many very competent men could be found to fill these offices, requiring nevertheless judicial aptitude and qualifications of no usual calibre. The men who are willing to abandon all their professional prospects, after being seven years or upwards at the bar, are usually those who have failed to realize any prospects of greater value. Much complaint has been made of the incompetency of some of the judges, and a catalogue of strange decisions might certainly be selected as edifying specimens of the new law propounded in the new courts. Nevertheless upon the whole the standard of judicial competency attained is quite as high as could reasonably be expected. The names of Starkie, Manning and others, adorn the list, and form very decided exceptions, of men realizing to their respective districts the uncommon union of cheap and sound law. We cannot, however, say that they form any sort of sample of the general body of their colleagues. Not only are the judgments in complicated cases very frequently given off-hand, but after a long case has been gone into, and several witnesses examined, the judge is expected to sum the case up in his own mind, without the assistance of reading over his notes. We have heard great murmurs against judges who delay their decisions for this purpose. They are therefore expected not only to possess a universality of legal knowledge, judicial aptitude and grasp at facts which neither judge or jury ever possessed before, but are also to perform the separate functions of both at once. It is not much to be wondered at that blunders frequently arise, and