THE NEW RULES OF COURT.
THE Judicature Act of 1873 prescribed a new form of legal procedure, intended to take the place of the various pro- cesses previously in use at Law or in Equity ; but only the main lines of this reformed system were traced in the Statute itself, and the working-out of its, principles in detail was left to be settled by the Judges, who were authorised to frame a body of "Rules of Court," to constitute the text-authority of the new practice. The execution of this task was en- entrusted to a Committee of the Judicial Bench, upon which the Equity Courts, the Superior Courts of Common Law, and the Probate and Admiralty Courts were all represented. Assisted by three draftsmen of good professional reputation, the Committee entered upon its task with zeal ; and even if the Judicature Act had come into operation, as was originally in- tended, immediately after the long vacation that has now com- menced, the Rules which have been drawn up for a considerable time, and have been approved by the whole body of Judges, would have been quite ready as the basis of an immediate change of procedure. The sanction, however, of an Order in Council has not been given to the Rules, and the Suspensory Act introduced by the Government, and carried in spite of a vigorous protest from Sir H. James and other lawyers, has put off for another year the inevitable change. The practising barristers, who complain that in middle-age they are compelled to master a new practice entirely unlike anything they have hitherto seen or used in text-books or in Courts, may avail themselves of the year's respite to study the Rules, and adapt to them the erudition and practical skill that have been acquired and exercised under the old system. We venture to say that the Rules may be thoroughly mastered in a third part of the time that would have to be bestowed by any person of ordinary intelligence upon any single branch of existing legal practice. We have not seen a more striking piece of evi- dence of the progress of modern notions about law than the admirable clearness, consecutiveness, and so to speak, common- placeness of the language used by the draftsmen in the com- pilation of these Rules, and endorsed by the approval of the Judges. Of course we should not encourage anybody to take a fool for his client by attempting to manage an action-at-law for himself even under the new practice without legal advice, but there is no obscurity in the Rules that ought to prevent such a person from knowing how and when to do the right thing at the right time.
It would be impossible for us even to summarise the leading features of the new procedure, but the attention of the lay public may be directed to a few of the salient points in the scheme of practice that is to supplant, or rather to absorb, our Chancery suits, our actions-at-law, and our other forms of legal process. The starting-point of the reformed practice is the adoption of a single form of initial complaint—a writ of summons—in place of the bill or petition in Chancery, or the writ in an action-at-law. The new writ of summons differs from the old writ in that it must be endorsed with a statement of the cause of action, so that the plaintiff will no longer be able to " conceal his hand " from the defendant. The endorsement of the cause of action may be in one of a
great number of forma appended to the Rules, or in a special form framed to suit the particular case ; and it states in simple language why the suit is brought and what sum of money is claimed. After the service of the writ, and the entry of appearance by the defendant, the pleadings commence, and in the new Rules an endeavour is made to arrive at a fair compromise between the excessive prolixity of the Bill and Answer in Equity, and the excessive technicality and obscurity of the pleadings of Common Law. If required, the plaintiff is bound to supply a statement of his claim in detail, specifying concisely the material facts upon which he relies, but excluding the evidence of those facts, and praying for relief either in some particular form, or generally asking that justice may be done him. The defendant is allowed to deliver a similar statement as his defence, and subsequent pleading on either part is discouraged, except by special permission. Very careful regulations are made to insure that issue shall be joined between the parties upon the substance of the claim, and not upon technicalities. The right of demurrer to any pleading as bad in law is preserved, and the party demurring or objecting on a legal point may also have leave from the Court to plead or dispute the facts as well. The administration of interrogatories or an exhaustive series of written questions, which either party may be com- pelled to answer according to the usual practice of the Court of Chancery, is introduced into all proceedings under the new Act. After the close of the pleadings notice of trial must be given, and the most striking feature of the new procedure is the variety of methods of trial permitted ; this, however, was made clear in the original Act, in which it was prescribed that the plaintiff might select a trial before a Judge or Judges, or before a Judge sitting with assessors, or before a Judge and jury, or before an official or special referee, with or without assessors.. In regard to evidence, the original Act provided that as a rule it should be orally taken ; but the Rules qualify this provision, by providing, in certain cases, for the admission of affidavits. After the decision of matters in issue at the trial, it remains in the discretion of the Court to enter the judgment, and regula- tions are made for the manner in which and the conditions under which the plaintiff is to move the High Court when judgment has not been entered. The methods of enforcing a judgment obtained are not altered under the new procedure, but the remedies by writ of attachment and by sequestration, previously confined to the Common-law Courts and to Chancery respectively, are now made equally available in all proceed- ings. No technical difficulties are placed in the way of an appeal which lies to the New Appellate Court.
Inasmuch as the object of the Act and of the Rules that supplement it is to supply a system of legal procedure at once cheap, and steady, and efficient, the summary processes which have been introduced in particular departments of Law are pre- served wherever they are consistent with the main lines of the new scheme. The joining of new plaintiffs or defendants in an action, and generally any alteration in the number or status of parties, may be settled simply by the Court, without any disturbance of impending litigation. One portion of the Rules has an importance greater than is at first evident. Under the Judicature Act, district registries may be estab- lished all over the country by Order in Council, and the Rules provide for the localisation of legal business under this provision. When a writ of summons is issued out of a district registry, and the defendant resides or carries on busi- ness within the district, the remainder of the litigation must be carried on there ; but if the defendant resides or carries on business elsewhere, he may appear in answer to the writ either in the registry where it is issued or in London. These and other provisions regulating district registries will, no doubt, lead, though perhaps more gradually than has been supposed, to the organisation of local ' Bars. The advantages of such a change are obvious, but so also are the objections to it. The operation of the Act and of the Judges' Rules will fall short of the recommendations of the Judicature Commission, but it goes far towards realising the general idea which found favour with the majority of the Commissioners.
It may be added that the long vacation, extending from the 10th of August to October 24th, beginning two days after the termination of Trinity sittings, and ending a week before Michaelmas sittings, is preserved, and during this period of professional rest no pleadings may be amended or delivered without leave. Two Judges of first instance and one Judge of Appeal are to sit for the despatch of urgent busi- ness. We should not have advocated the suspension of Lord
Selborne's Act merely to afford an opportunity for the criti- cism and correction of these Rules, but since the Government have chosen to postpone the date on which the Act comes into force, the interval may usefully be employed in considering objections and emendations. That there will be an abundant supply of both, is very probable ; but that, upon the whole, the new practice will be as satisfactory to the legal profession as it is creditable to the liberality and intelligence of the Judicial Bench, we cannot question.
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