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competent court under a writ of habeas corpus, or to enforce
the arrest of one thus freed from custody ... it seems
to me to follow, that however wrong the Court of
Appeal might think a discharge to have been, it would
have been powerless to order a rearrest or at least to
enforce such an order.” The question whether an appeal
would lie from order of the High Court refusing a writ of
habeas corpus was left open.
“In the Court of Appeal,” says the editor of the
Judicial Statistics for 1899,1 “there was a large increase
of business during that year. The appeals entered rose
from 767 to 826, and were 28‘76 in excess of the average
for 1894-98. The increase was chiefly in appeals under
the Workmen’s Compensation Act. Out of a total of
826 appeals entered those under this Act were 140, or
16'95 per cent, of the whole.” The list of appeals at the
commencement of each successive sittings during the years
1900-1901 showed a steady increase in the numbers wait¬
ing to be heard. It was not very clear how these arrears
were to be overtaken. An addition to the number of
ordinary members of the Court of Appeal would not
achieve that end, unless arrangements could be made for
the court to sit (temporarily at least) in three divisions;
and it would not do to weaken the authority of the court.
And while a special commission might be appointed, the
difficulty was that the House of Lords and judicial com¬
mittee could not spare any of their members.
The order of the Court of Appeal is final in appeals
from the High Court in Bankruptcy, unless leave be given
to appeal to the House of Lords (sec. 104 Bankruptcy
Act, 1883) and in divorce appeals, except where the decision
either is upon the grant or refusal of a decree for dissolu¬
tion or nullity of marriage or for a declaration of legiti¬
macy, or is upon any question of law on which the court
gives leave to appeal (44 and 45 Yict. c. 68, sec. 9), but
no further appeal to the House of Lords lies, even with
leave of the Court of Appeal, on appeals from the High
Court sitting as a court of appeal from county courts in
bankruptcy. With these exceptions, there is now a right
of appeal from every order of the Court of Appeal to
the House of Lords. By sec. 20 of the Act of 1873,
the appellate jurisdiction of the House of Lords (so far
as it affects England) was abolished, but this section was
repealed by the Act of 1876. Experience has probably
convinced most persons of the wisdom of retaining a final
court of appeal.
The practice and procedure of the supreme court are
regulated by rules made by a committee of judges, to
which have been added the president of the
anrfC Ce Incorporated Law Society, and a practising
procedure, barrister and one other person nominated by
the Lord Chancellor. The rules in force in 1902
were those of 1883, with some subsequent amendments.
With the appendices they filled a moderately-sized volume.
Complaints are made that they are too voluminous and go
into too much detail, and place a burden on the time and
temper of the busy practitioner which he can ill afford to
bear. In the opinion of the writer, the authors of the
rules attempted too much, and it would have been
better to provide a simpler and more elastic code of
procedure. Buies have sometimes been made to meet
individual cases of hardship, and rules of procedure have
been piled up from time to time, sometimes embodying
a new experiment, and not always consistent with former
rules. It is, however, proverbially easy to criticize.
The most important matter dealt with by the rules is
the mode of pleading. The authors of the Judicature Act
had before them two systems of pleading, both of which
[united kingdom
were open to criticism. The common-law pleadings (it
was said) did not state the facts on which the pleader
relied, but only the legal aspect of the facts or the
inferences from them, while the Chancery pleadings were
lengthy, tedious, and to a large extent irrelevant and
useless. There was some exaggeration in both statements.
In pursuing the fusion of law and equity which was the
dominant legal idea of law reformers of that period, the
framers of the first set of rules devised a system which
they thought would meet the defects of both systems, and
be appropriate for both the common-law and the Chancery
divisions. In a normal case, the plaintiff delivered his
statement of claim, in which he was to set forth concisely
the facts on which he relied, and the relief which he
asked. The defendant then delivered his statement of
defence, in which he was to say whether he admitted or
denied the plaintiff’s facts (every averment not traversed
being taken to be admitted), and any additional facts and
legal defences on which he relied. The plaintiff might
then reply, and the defendant rejoin, and so on until the
pleaders had exhausted themselves. This system of plead¬
ing was not a bad one if accompanied by the right of either
party to demur to his opponent’s pleading, i.e., to say,
“ admitting all your averments of fact to be true, you still
have no cause of action,” or “ defence ” (as the case may be).
The writer, however, thinks that the authors of the new
system were too intent on uniformity when they abolished
the common-law pleading, which, shorn of its abuses (as it
had been by the Common Law Procedure Acts), was an
admirable instrument for defining the issue between the
parties, though unsuited for the more complicated cases
which are tried in Chancery, and he thinks it would have
been better to try the new system in the first instance in the
Chancery Division only. It should be added that the rules
contain provisions for actions being tried without pleadings
if the defendant does not require a statement of claim, and
for the plaintiff in an action of debt obtaining immediate
judgment unless the defendant gets leave to defend. In
the Chancery Division there are of course no pleadings in
those matters which by the rules can be disposed of by
summons in chambers instead of by ordinary suit as
formerly.
The judges seem to have been dissatisfied with the
effect of their former rules, for in 1883 they issued a fresh
set of consolidated rules, which, with subsequent amend¬
ments, were those in force in 1902. By these rules a further
attempt was made to prune the exuberance of pleading.
Concise forms of statement of claim and defence were
given in the appendix for adoption by the pleader. It is
true that these forms do not display a high standard of
excellence in draftsmanship, and it was said that many of
them were undoubtedly demurrable, but that was not of
much importance. Demurrers were abolished, and instead
thereof it was provided that any point of law raised by
the pleadings should be disposed of at or after the trial,
provided that by consent or order of the court the same
might be set down and disposed of before the trial
(Ord. xxv. 22. I, 2). In the opinion of the writer, this
was a disastrous change. The right of either party to
challenge his opponent in limine, either where the question
between them was purely one of law, or where even the
view of the facts taken and alleged by his opponent did
not constitute a cause of action or defence, was a most
valuable one, and tended to the curtailment of both the
delay and the expense of litigation. Any possibility of
abuse by frivolous or technical demurrers (as undoubtedly
was formerly the case) had been met by powers of amend¬
ment and the infliction of costs. Many of the most
important questions of law had been decided on demurrer
both in common law and Chancery.
LAW
1 Judicial Statistics, 1899, p. 20.