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incidentally we may mention, they proposed to call a “College of Justice,” to consist of the Judges of the Supreme Court, and Judges of the Sudder Dewany Adalut: the latter being profoundly conversant with the Hindu and Mahommedan law and native manners and customs; but generally unacquainted with English Law; while the acquirements and qualifications of their proposed colleagues were exactly the converse; this combination therefore appeared well adapted to its object, especially, as subordinate Courts, though first to be established only in the Presidency towns, were intended to be planted in all the large towns, in short, all over India. We can conceive that so large an institution, with so new a name, would, in the bureau of the Home Department, be regarded with disfavour, as disproportionate, until the subordinate Courts were multiplied; this objection, however, being really of a temporary nature, might have been fairly met, without injury to the principle, of establishing one common court of appeal, to which every kind of law would in the person of some one or more of its members, be more or less familiar. The altered plan however of the subordinate Court has superseded the proposed Court of Appeal, and the appeal from the subordinate Court in its altered form, is to be to the SCPREME Court, or to any one Judge of that Court. An appeal is allowed in all cases, small as well as large ones: and without any limitation as to grounds of appeal: but there is this very important difference between the original plan and the present one, that on the former, the appeal in cases decided before the non-professional judges, for sums not exceeding Rupees 400, was to be to the Chief Commissioner, a Barrister: leaving only the cases above Rupees 400 for the College of Justice: but by the present Act the appeal is in all cases to the Supreme Court Judges : this alteration, in effect, we apprehend, makes the right nugatory: and thereby contravenes the principles of the Report of the Commissioners. If it is just and right that no appeal should be allowed in cases under rupees 400, let it be enacted so, and the appeal be put under that limitation; but, if the contrary is right, let, as was originally done, an appeal be given, of which the suitors can avail themselves; we cannot see why the original plan should not be adhered to. We cannot doubt that the Law Commissioners intended to regulate the right of appeal in the Act creating the Court of Appeal or College of Justice: but the right to appeal to the Supreme Court is put under no restrictions whatever; it is limited neither as to time, nor as to grounds: nor is it put under any conditions whatever. Errors are of various kinds: we
shall not deny that an opportunity ought to be given to obtain a correction of every error: but we do seriously deny that the same appeal is proper for all errors. In most cases too we apprehend, that the right to appeal ought to be exercised under a regulated control on the part of the Court appealed from: but here, the appeal is to be by motion in the Supreme Court for rule to shew cause, and that of course upon affidavits, which also of course will be framed of the length and fashion which suit the Supreme Court lawyers. Experience has given ample warning, and with more than the significancy of the head of friar Bacon; and to prevent the abuse of which it cannot but raise apprehensions, the legislature should define, if the proceeding is by motion, what materials the appellant may move upon.
When the appeal is before the Court, by what law is the Court to decide it? We should say by the law of the subordinate Court, which consists, as it respects procedure, of its own rules and orders, and as it respects substantive law, the law laid down in the Act for its guidance: this we apprehend would by implication be the law on appeals, and is in fact the law prescribed, unnecessarily as we conceive, in the original Act of the Commissioners : but in the present act, a rider is added of seven lines to the Commissioners' five lines, and the consequence is a perfect legal riddle as to what law is to govern appeals.
We refer our readers to the note below for the words of the enactment, and will offer a few remarks in a logical rather than a legal point of view, on its style and construction, that our readers may judge whether it is a tolerable piece of lawmaking. The rudest judge of style and thought cannot fail to perceive the duality of its origin : it consists of two sentences with a “ that is," which commonly introduces an explanation, between them, but here it only announces a division, and instead of being conjunctive, puts the representatives of two different parties and creeds in hostile position. In the one we see the mind scientific, philosophical, much habituated to general forms of expression and perhaps over-confident of
The clause animadverted upon is as follows; the part in italics is the clause of the Commissioners; the rest, not in italics, is what has been added :
XXXII.-“ It is herely enacted that the Supreme Court shall not make absolute any such rule if the decree of the subordinate Civil Court be consistent with the justice, conscience and equity of the case : that is to say, the Supreme Court shall be governed in its decision upon any motion to make any such rule absolute by the principles by which an English Court of Law would be governed in its decision upon a motion to make absolute a rule for a new trial, when there has been no misdirection in point of law by the judge before whom the cause was tried.”
them; in the other the mind (we are speaking of it as that of a class and not of any peculiar individual). merely, practical and technical, which in general forms sees foreshadowed the ghost of codification: and therefore is prejudiced against the compass, force, and beauty of them, and utterly at a loss with them, yet, (of which the statute book affords many instances) venturing to alter and put in explanations of them. Now let us apply these observations. The one having provided that the Subordinate Court should be guided, by “equity and good conscience following the law," directs the Court of appeal not to disturb its decrees, “if they are consistent with the justice equity and good conscience of the case :” the law of the Subordinate Court is thus clearly made, as it ought to be, the law of the Court of Appeal, and as, by implication, it would be, if there were no direction at all on the subject: the direction therefore is legally just, and logically accurate, and only unnecessary. But, next, we come to the sentence following the “ that is,” which, as being meant to explain, ought to be clear of itself, and clearer than what precedes it: but is on the contrary densely obscure: so that, certainly no ordinary vision, and we should say only a very strong legal vision, can possibly pierce to its meaning. But suppose it explained, and to contain à rule, it is not a rule of general application : or as a general rule is clearly subject to the reductio ad absurdum: for instance, the rule is, that all appeals shall be decided, as the Courts decide motions for new trials where there has been “ no misdirection in point of law ;” instead of the words italicized, substitute the equivalent words “error of law ;” we have then this rule, viz. that appeals brought on the ground of error of law shall be decided as motions in England are, in cases in which there has been no error of law.* But again,' “ misdirection” is only a particular kind of error, and, as the rules relating to it are not general, that is, do not govern in all other kinds of error, they cannot become general rules by merely making a voyage to India, or to make them general, is a legislative absurdity. Finally then, sceing upon a strict but fair critical comparason, how much for the worse are all the proposed changes, we may still be permitted to hope for the establishment of the original plan of the Law Commissioners, and we cannot do better than lay before our readers in conclusion the passage from the report, in which they have themselves cogently represented its advantages, and met some objections to it :
* Here is an illustration.- A tradesman has recovered a decree for the amount of his bill, though the defendant pleaded payment, and in proof of payment put in a paper, which he called a receipt : but the judge ruled it to be no such thing, and no proof of payment. The defendant appeals on the ground of misdirection, for that the judge ought not to have taken it upon himself to decide the effect of the instrument, and that his decision was wrong as to the effect of it. Now by the above rule, the Court of Appeal must decide as if there was no misdirection, that is, must decide contrary to the law, and without regard to the real truth of the case.
“ We ourselves feel perfectly confident of the success of our experiment, but confidence of the success of such an experiment cannot be attained without long and careful reflection ; the public therefore cannot be expected fully to share it.
But proceeding as we propose by steps, all that can be imagined to be put to hazard by failure, is of trifling value compared with the benefits to be obtained by success.
For suppose that, as we expect and intend, the Suitors at Law should be drawn away from the Supreme Court by the greater cheapness and simplicity of the new procedure, and the facility of examining the adversary ; and suppose further that contrary to our expectations, the new Judicature, Original and Appellate, should not appear to those who may watch its operation with a view to the interests of justice, to be a powerful instrument for the discovery of truth and for the correct application of the Rules of Substantive law, then the whole of that large portion of equity which is not consequent upon a Suit at Law, would remain untouched, and if ever reformed at all, would be reformed in some other way. The whole machinery would be left standing, and the portion of Equity and of Law drawn away by our new Court, would revert to its original condition.
On the other hand if the experiment should, as we venture to foretell, be completely successful, the Government could then proceed with the greatest confidence to provide that the new Court should entertain all Suits in equity, whether based upon previous proceedings at Law or not. In like manner and for the same reason, (viz. the doubt which
be felt by the reflecting portion of the public as to the success of our experiment) we do not recommend the abolition of the Common Law jurisdiction of the Supreme Court. We believe that such a measure might be unpopular, and we think that our object may be attained in a gentler way, and without shocking any prejudices, by allowing the two systems to subsist together. We do not even intend to protect the jurisdiction of the new Court by enacting that no one who sues at Law in the Supreme Court shall recover costs.
If this plan is adopted there will be two roads open at once by which the suitors of the presidencies may obtain the great benefit of having the profound learning of the Judges of the Supreme Court applied to their affairs.
To disentangle transactions which the ignorance, negligence, and fraud of mankind have complicated, and to refer each essential part of the transaction to the principles of Law or Jurisprudence which ought to govern it, must always be the subject matter of a science and an art. It is vain to expect that this science and this art can be fully mastered without long and arduous discipline. That discipline the Judges of the Supreme Court have gone through, and it is because of the high value we set upon their science and art, that we are so anxious effectually to open the advantages of them to the public,
When these two roads are open at the same time it will be very instructive to observe what sort of causes are carried by the new road and what sort by the old. Our own belief is that in no long time it will become disreputable to sue at Law in the Supreme Court. It will soon be understood that a plaintiff who prefers bringing his action there, is a man who is afraid of being personally examined as to the truth of his case, a man who shuns equity and good conscience, a man who wishes to entangle his adversary in the meshes of written special pleadings and to have his cause decided upon some point foreign to the merits of it.
In this state of things we of course expect that the Common Law jurisdiction of the Supreme Court will wither away in the presence of its rival, and that the Legislature will shortly be able to abolish it without exciting alarm or regret.”
The Acts relating to the Supreme Court.—The second Act mentioned at the head of this article, has the merit of being adapted, as far as it goes, to effect what it professes, an improvement in the practice and law of the Supreme Court in Calcutta. A rapid and brief notice of the heads of this piece of legislation may be acceptable to our readers. It begins by altering the mode of proceeding in case of the non-appearance of the defendant, after actual service of a writ of summons : and allows the plaintiff to proceed as at present he may and does, when a defendant has appeared to the writ, but made no defence to the action: the two cases being alike, this measure is good so far as it assimilates the practice in relation to them; but why on assimilating the practice thus far, it still preserves to the plaintiff in the one case what he has not in the other, viz. the writ of sequestration as under the Charter the object of which was to compel an appearance, or to entitle the plaintiff at some future time to proceed to judgment, we can not imagine. Next we have clauses for enlarging the operation of writs of execution on the common law side of the Court, by adopting the recent legislation respecting the analogous writs in England: and undoubtedly if the writs given by the Charter had only the very limited operation of writs of fieri facias in England, the benefit would be a large one: but that is not the case ; under the existing writs nearly all kinds of legal assets can be taken in execution: consequently, we have here in reality a little useful reform and a great deal of padding, which makes the little measure look a great one. There are clauses also for abolishing arrest on mesne process, except in certain cases and under the precautions established in England: but the exceptions are more numerous than are allowed in England; and one particularly deserves to be mentioned, that of a defendant evading the process of the Court : under colour of this exception, especially in actions