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allows what is in effect an appeal to the Supreme Court, by entitling the Suitors to move in that Court, for new trials, new hearings, reversals, &c.-(3) as arbitrary; that is, it is a special limit, founded on no special reasons, and following no intelligible or assignable criterion and hence, it is inconsistent. and zigzag, here turning off at a straw, there overleaping a camel; following neither rule of thumb nor of three, nor of any proportion; for, by no legal or scientific considerations can it be shewn, that in any one respect the causes of action of the respective value of Rs. 200 (£20) per annum, Rs. 300 (£30) and Rs. 1,000 (£100) are equipollent or equivalent; while on the other hand it is palpably clear that causes of the largest amount may be neither more nor less difficult to decide than these, because the larger constantly involve only the same questions as the smaller ones:-(4) as unjust, for it drives suitors whose cases, though of larger amount, are undistinguishable from those within the jurisdiction, to another court, for no respectable or tenable reason; and (5), in this respect the act is inconsistent; for by another clause, now to be mentioned, claimants may sue in the Subordinate Court to any amount, if they will sacrifice the excess of their rights beyond the limit of jurisdiction: which is, in effect, treating the court as omni-competent and yet not worthy of confidence: much the way in which we treat persons of small wits or just recovering their reason: the sword of justice is a sharp instrument with which it is dangerous to trust them; they may cross the boundary, but with a strait waistcoat on.

We have described the jurisdiction of the Court as extending generally only to common law subjects, according to the usual technical division: but the jurisdiction is also to extend to the following subjects of equity jurisdiction; viz. the recovery of the unliquidated balance of a partnership account; the distributive share of an intestate's property; a legacy; and residuary share under a will: but still, under an arbitrary limit as to value: that is only to Rs. 500 (£50) if the claimant shall be content to limit his claim to that sum. Against any merely arbitrary limit having regard only to value, we have already stated our objections; but at all events the limit in these cases is unjustly low, with reference to the reason for assigning to the Court any equitable jurisdiction at all, if, as we presume, the expensiveness of an equity suit in the Supreme Court, be the reason: and we may observe that Mr. Amos has recorded his opinion, that in this point of view, and with reference to common law

subjects, the subordinate court should have jurisdiction to the extent of Rs. 5000 (£500); â fortiori ought the limit not to be short of this, on subjects of equity jurisdiction. Nor are partnership accounts and legacies the only subjects of equity law, on which Supreme Court costs are an effectual bar, and make a total failure of justice at present: why then, to be consistent with reason and principle, is not the equity jurisdiction of this Court made general, as to all these subjects, under the same limit as the general common law jurisdiction? It is a selection of two subjects out of two thousand many of which are of just as common occurence as those mentioned. "Better two than none :"-but, better still principle and system and we prefer the original plan of giving the Court an unlimited but exclusively Common Law jurisdiction, postponing equity altogether until the procedure of the Court should be matured and the professional Judges be au fait in the system.

Next, as to the Law of the Court: we have noticed the peculiar, well cast phrase, by which the Commissioners originally applied equity law to subjects of common law jurisdiction, on which common law and equity are at variance; and the objection to this phrase, we apprehend, became a mere logomachy not worth contending for, from the moment when it appeared. It was made under a misapprehension of meaning; but it has been persisted in; yet probably not with the intention of making anything more than an alteration of phrase or verbal alteration: we however deem more has been done, and the effect of the rejected is widely different from that of the substituted one-First, between the rejected and the substituted phrase there is all the difference between a technical and a scientific form of expression:-the technical and substituted one not having usage to support it, which might be admitted to be a ground of preference ;-but secondly, it appears to us there is an essential difference between the two, consisting in this; that the rejected phrase made equity the law of the Court; whereas, the substituted phrase merely gives it as a privilege to the defendant which he may use or not; and it becomes the law of the Court only when the defendant sets it up by way of defence, exception or limitation. The substituted expression has therefore the effect, as appears to us, of establishing inconsistent rights in the same Court, making the final prevalence of the right or the wrong, to depend on accident; and at the same time of preserving a conflict of jurisdictions: and accordingly when a plaintiff in the Subordinate Court gets a judgment, the defendant may get an injunction in the Supreme Court, whose jurisdiction

is expressly reserved; and moreover, -as we should have remarked before, but we fear to crowd our argument with too many details, the last three lines of the clause which empowers defendants to set up an equitable defence, expressly provides that "such defence shall not involve a cross demand exceeding rupees 1,000;" and thus it appears, the more valuable equitable rights are to be absolutely impotent in the Subordinate Court; and notwithstanding the existence of such rights, the subordinate Court cannot recognize them, but must decree wrong, that is, must make a decree for the common law rights, which, by the very supposition, may be restrained by an injunction in Equity, in the Supreme Court.*

When we come next to the procedure of the Court, we are sensible that we are approaching matter too purely technical for our columns; yet it is of the highest importance; for as the law of the Subordinate Court is to be that of the Supreme Court, it follows that in procedure lies the essential difference between them. The learned Gentleman whom we have already quoted, after illustrating the proposed procedure by examples, passes on it the following eulogium-" it is simple yet searching and effective, and to do justice there needs on the part of the judge but thinking right and meaning well if he has any previous scientific training." We demur not to this praise: the same competent judge, however, observes that the Commissioners have called their method of eliciting the questions for decision,-" oral pleading," and have subjected it to some of the technical rules of special pleading; which, he thinks, are no more needed for a good judge than a strait

* The different expressions alluded to in the above discussion are as under :First and Revised Edition of Substituted Clause in present Act.

Temporary Act.

And it is enacted that every judge of the Superme Court holding such Court, &c. shall in every case make such a decree as may be agreeable to equity and good conscience, following such law as the said Supreme Court would have administered if the matter had been brought before it in an action at law.

Commissioner's Act.

S. VI. And it is enacted that the said subordinate Civil Court shall in every case make such decrees as may be agreeable to equity

good conscience, following such law as the Supreme Court would have administered if the matter had been brought before it in an action at law.

S. IX. And it is enacted that the said Court shall on all purely legal demands for which an action at law is maintainable decide according to the law to be administered in the Supreme Court, in the like cases between the like parties; provided that the defendant may in any action for such legal demand allege and, establish an equitable defence and thereupon the said Court shall by its decree give the defendants the benefit of such defence to the same extent and upon the same principles of equity as would be applied in the like case by the said Supreme Court on its equity side; provided that such defence shall not involve a cross demand to an extent exceeding the sum of one thousand Company's Rupees.

waistcoat for a sane man: and then with evident satisfaction he refers to Mr. Mill's denunciation of special pleading as "a mischievous mess which exists in defiance and mockery of reason;" and we may now add a reference to our own recorded opinions.* In every case the Court ought to have a power of deciding summarily; that is, whenever all the facts are before it, though not in the technical form of pleading; pleading and other strict forms being mere means, should be dispensed with, when the end can better be attained without them, or better be attained by other means: and if it is said that rarely can be the case, we beg to deny it, as contrary to experience, to precedent, and to the practice of those Courts which do employ special pleading; because more than half the questions in dispute are decided without pleadings, and different kinds of Courts have widely different modes of investigation and trial and hence we venture to assert, that the imposition of strict rules of prestatement is not warranted by any enlarged view of the means and ends of justice; that a system of pleading may be often applied with advantage we do not deny; it should be given to the judge as one of his instruments: but there are others, and as we said before, "the only fixed and invariable rule which we would lay down is, that when the judge comes to decide, he shall state what issues or facts he finds and doing this, these findings will, as we apprehend, contain all that the parties rightly advised ought to have pleaded or put in issue, and therefore will afford the same security against misdecision as is sought for in written or oral prestatements."

A few isolated provisions not yet noticed, deserve, as being peculiar, to be mentioned; thus, if a plaintiff sues for damages for breach of an agreement, and the Court thinks the contract may be performed without prejudice to the plaintiff it may direct a specific performance, and that apparently unasked by the defendant. We neither deny nor assert that this is an expedient provision; but it is remarkable, that while it gives the Court the power incidentally, to decree specific performance, no power is given to the Court to entertain a suit directly for specific performance.

Another remarkable provision is, that the Court shall decree what portion of the costs incurred for professional assistance shall be allowed against the adverse party: which appears to us open to this very formidable objection, that it gives the Court too much direct power over the attornies and counsel, and enables it to punish the suitors for employing particular in

* Calcutta Review, Art. vi. Indian Law Reform, Vol. vi. p. 41.

dividuals and so, it tends to discourage the most valuable quality of the advocate, intellectual independence, and converts intrepidity for a client into a cause of professional martyrdom.

There is a clause also taxing for the support of the Court those parties who have been guilty of "inconsiderate litigation;"-plaintiffs, to the amount of one twentieth of the sum wrongfully claimed; and defendants, in the same proportion: but the Court may remit the tax if it is satisfied the parties had reasonable ground for suing or defending. By another clause the Court is empowered to impose a fine of not exceeding Rs. 200 (£20) upon any party to a suit, who by himself or his Agent has wilfully made a false statement. The act contains no provision for summary decisions, that is, decisions at any stage of the proceedings, e. g., immediately upon appearance to the summons, if all the facts are then elicited, without the form of oral pleadings: our readers will pardon an illustration: e. g. a durwan claims a month's wages; half the cases of the Court, like this, are best decided on the instant: if the durwan has to come to the Court, first for the summons, a second time for the judge to hear his case and prepare the "pleadings," and a third time to prove his case or have a decision; the Court instead of being an improvement will be a nuisance. And the power to decide summarily should be general, that is, it should apply to large cases as well as to small ones: for example, the holder of a Bill of Exchange for Rs. 1,000 summons a person who is not a party to it: he appears, and that is his defence:* why should the judge not be permitted at once to tell the claimant, that the Law of England as to Bills is the law merchant, and that by the custom of merchants a person not a party to a bill, either by himself or his agent, cannot be made to pay it. If the plaintiff cannot carry his case any further, or his additional facts are still insufficient; cui bono more ado: the judge should decide the matter at once to impose further forms upon him is to carry on a sham fight, a fight of mere forms; in which, however, justice may get wounded, for in the unnecessary use of Law forms, as in swords, there is always danger.

The reader is already informed that the original plan of the Commissioners included a general Court of appeal, which

This case actually happened recently in the Supreme Court; and the simple rule of the law merchant was applied at an expence of rupees 2,000 (£200), when if the parties had gone before the judge, made their statements to him; produced the bill; he would on inspection of it have said, "the defendant is no party to it, how do you make out his liability," and thus he would have decided it on the instant, and the costs would have been one-tenth of that sum.

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