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independence which it cannot brook, and, failing success in this direction, has pursued a policy of belittling the Court, and lowering the status of the Judges in the eyes of the community. Their salaries have been reduced. Before, these salaries were higher, now they are lower, than those of the members of the Board of Revenue-an invidious distinction, the full effect of which can be understood by those only who are conversant with native ideas, which grade officials according to their salaries. The last disparaging and mischievous step has been to extend, by three years, the period of service necessary to pension. In an address presented the other day to the retiring Chief Justice, it was justly said that the effect of these changes has been to narrow dangerously the field for selection of the one-third of the judges, who must be taken from the Bar. A longer period of service in a climate which has great risks for men at the age at which judges are safely made, and a reduced salary, the reduction being aggravated by the fall in the value of the rupee from 2s. to about ls, 2d., are strong powers of dissuasion from the acceptance of a seat on the Calcutta High Court Bench. On the members of the Civil Service, from which another onethird of the judges must be taken, the effect has been that the best men who adopted a judicial career in hopes of winning one of the prizes, retired in disgust when within reach of the top, the prize being no longer worth having, and no exception being made in their favour so as to remove the strong sense of personal injustice and breach of faith.
These reductions have been justified upon financial grounds and the 'urgent need for economy-an argument of doubtful force and reasonableness when we consider the enormous surplus revenue derived from the administration of justice in Bengal. If there is any class to which this argument can be justly applied, it is to the members of the Executive Government, for whom no longer exist those dangers and désagréments of Indian life, which were to be compensated by the higher salaries fixed, when all officials passed the hot weather and the rains at work in the plains, and there were no Hill Capuas, where work and play might be combined in delightful variety.
There can be little doubt that, as a matter of statecraft, it is a grave mistake to lower the status of the High Courts, or any of them. India is not represented in Parliament, and is governed by a strong Executive--so strong as to disregard constitutional principles and dictate their votes to the members of the Legislative Council-honest in all its purposes no doubt, but yet liable to human error.
The exercise of great power by any man or body of men must ever have its angers, if there are no safeguards. The greatest safeguard in India, the most effectual counterpoise to a strong official Executive, is an able, upright, and independent Judiciary.
To consider the question in another point of view, the effect of what has been done (which, by the way, nerer would have been done if the matter had been debated in the House of Commons), is to drive away the best English ability from the High Court, while the best Native ability, denied other outlets of employment, finds a place on the Bench. Will the inevitable comparison that will be made some years hence, be for the honour of England and conducive to her supremacy:
namely, (1) the persons (if any) who are under the settlement trustees, with power of or upon trust for sale of any other land comprised in the settlement, and subject to the same limitations as the land to be sold, or with power of consent to or approval of the exercise of such a power of sale; or, if there be no such persons, then (2) the persons (if any) who are for the time being under the settlement trustees with future power of sale or under a future trust for sale of the land to be sold, or with power of consent to or approval of the exercise of such a future power of sale, and whether the power or trust takes effect in all events or not. The difficulty in this section is, that it refers only to land to be sold, whereas it might be also exchanged, partitioned, leased, mortgaged, or charged. Possibly the court might hold that by necessary implication these other dealings with the settled land were included. According to Key and Elphinstone (4th edit., p. 603) the restriction to a sale seems likely to give rise to great difficulty and embarrassment.
Another question arises from the wording of sect. 4 of the same Act of 1890. It will be remembered that under sect. 50 of the principal Act the rights of an assignee for value of the estate or interest of the tenamt for life shall not be affected without his consent. Under those provisions the trustees of his marriage settlement, to whom he had assigned his life interest, would have to give their consent, and might accordingly block a sale. To remedy this, it is enacted by the Act of 1890 (sect. 6) that“ every instrument whereby a tenant for life, in consideration of marriage, or as part or by way of any family arrangement, not being a security for payment of money advanced, makes an assignment of, or creates a charge upon, his estate or interest under the settlement is to be deemed one of the instruments creating the settlement, and not an instrument vesting in any person any right as assignee for value within the meaning or operation of sect. 50 of the Act of 1882.” A post-nuptial settlement is not within this section : (Re Marquis of Ailesbury's Settled Estates, 69 L. T. Rep. 493 ; (1893) W. N. 140). The object of this section was to facilitate sales, but the decision of Mr. Justice North in Chambers (Re Nicol) will cause it to be a great hindrance. The instrument is to be deemed one of the instruments creating the settlement. Therefore, says Jr. Justice North, a compound settlement is formed, and the persons appointed by the court trustees of the original settlement for the purposes of the Act are not trustees of the compound settlement. The possibility of a suggestion of this kind occurred to the editor of the 4th edition of key and Elphinstone's Precedents (vol. 1, p. 502), who says : It seems clear that sect. 4 of the Act of 1890 would not have the effect of creating a compound settlement, so as to affect the powers of the trustees under the original settlement; a charge coming within that clause being in the position as if it had been contained in the original settlement, and the enactment having the same effect as the overreaching clause commonly inserted in re-settlements by father and son.” It is the policy of the Settled Land Acts that there should be trustees to look after the interests of the persons entitled to the fee by having notice of the tenant for life's intention given to them and receiving the purchase money of the fee. It hardly seems reasonable, then, that the Legislature should have intended that the dealings of the tenant for life with his own interest could preclude the trustees of the fee from exercising their old functions. Unless Mr. Justice North's decision is overruled it will be necessary to resort to the court for the appointment of compound settlement trustees, as there is no one else who can appoint them.
Possibly there may be some distinction drawn between trustees with a power of sale and trustees appointed for the original settlement for the purposes of the Acts. In the former case the power of sale is paramount to the uses and trusts limited and declared by the main settlement or the settlement made by the tenant for life ; while the trustees in the latter case are appointed for a particular settlement, which has been added to by the Act of the tenant for life. Still the difference must be received with some caution, as trustees with a power of sale, in order to be trustees for the purposes of the Settled Land Acts, must have that power under a settlement, and if there is a compound settlement it may be necessary for them to have it under the compound and not the original settlement. At any rate there seems to be a legal knot worthy of the interference of the Legislature.
TRUSTEES FOR THE PURPOSES OF THE SETTLED
LAND ACTS. THERE are a few points connected with this class of trustees which require a short explanatory Act of Parliament or the decision of the Court of Appeal. In the definition clause of the Act of 1882 it is declared that, “the persons (if any) who are for the time being, under a settlement trustees with power of sale of settled land, or with power of consent to or approval of the exercise of such a power of sale, or if under a settlement there are no such trustees, then the persons (if any) for the time being who are by the settlement declared to be trustees thereof for purposes of this Act, are for purposes of this Act trustees of the settlement”: (sect. 2 (8). In Mr. Wolstenholme's book (7th edit., p. 296) it is said that, “ In all settlements since the Act the proper course is expressly to appoint trustees for the purposes of the Act.” As the specially declared trustees are not the proper trustees, if there are trustees with power of sale, &c., the settlement should not nowadays confer such a power where trustees are appointed for the purposes of the Acts.
As sometimes the trustees had not an immediate power of sale, or were not trustees in relation to a portion of the property, and application had consequently to be made to the court, by the Act of 1890, sect. 16, when there are no trustees for the purposes of the Act of 1882, the following persons are to be the trustees for the purposes of the Acts 1882 to 1890,
1.--DESCRIPTIVE WORDS. ** We do not admit that our tribunals legislate, we imply they have never legislated, and yet we maintain that the rules of the English common law, with some assistance from the Court of Chancery and from Parliament, are co-extensive with the complicated interests of modern society : (Ancient Law. Maine).
Upon the assumption of Sir Henry Maine it might, perhaps, be irreverent to the Constitution to suggest that our judges have created, by a series of decisions, a new kind of “property," although that term is judicially deprecated, which we venture to call “ Judge-made Monopolies." These monopolies, having their origin, as Sir Henry Maine would suggest, in the legis gremium, are outside any effort of Parliament, as expressed in Patent or Trade Marks Acts; they are in effect the bulwarks of that vague conception, recently revivified in the House of Lords, called goodwill : (Trego v. Hunt, 73 L. T. Rep. 514; (1896) A. C. 7).
It had certainly been considered outside the law courts a legitimate and rightful trade to make spades and call them spades, and so Lord Esher thought in Reddaway v. Banham (72 L. T. Rep. 73; (1895) A. C. 286); but then the House of Lords said, “ No, you must not call it a spade if a jury think that that particular word means in the trade or elsewhere, or somewhere, not only a spade, but a spade made by Smith at his workshops."
In a rhetorical passage Lord Vacnaghten is reported to say: “At
Panham's works, where it cannot mean Reddaway's belting, it may be Justice Smith, “ to all connected with the sauce trade that Yorkshire constrned to mean belting made of camel's hair ; abroad to the German Relish denoted sauce manufactured by the plaintiff. manufacturer, to the Bombay millowner, to the ap-country native, it must In order to invoke the protection granted by the common law, the mean Reddaway's belting, it can mean nothing else. I venture to think manufacturer must prove (1) that the defendant is selling or attempting that a statement which is literally true, but which is intended to convey a to sell the defendant's goods and not the plaintiffs'; (2) that he uses false impression, has something of a faulty ring about it; it is not sterling such a trade description of his goods as is calculated to make ordinary and coin, it has no right to the genuine stamp and impress of truth”: unwary purchasers believe that the goods so designated and offered for 174 L. T. Rep. 296; (1896) A. C. p. 219). This metaphorical digression, sale are the goods of the plaintiff. If the words Yorkshire Relish indicated found necessary to support the verdict of the jury that camel hair to the “ordinary and unwary purchaser” that the sauce so named was belting -an admittedly accurate description--meant belting made by the the sauce of Powell, then it is clear that, although unregistered, York. laintiffs as distinguished from belting made by other manufacturers, shire Relish is, properly speaking, a “trade mark," and it would further most surely points a moral ; and the moral, we venture to think, is this, appear that, in all cases where a sole manufacturer has been in the habit that if a man chooses to build up his trade connection by using merely of selling an article described by a fancy name, that such manufacturer is · descriptive names, he should not be entitled to ask a jury to say that such entitled to protection at common law. descriptive names mean, under any circumstances and to any people, The difficulty in these and similar cases lies in the question whether traders, or innocents, anything more or anything less than that which the the fancy name does in fact indicate the maker, so that its use is calcuordinary interpretation of the English language says they do mean.
lated to make people think that the article so described is the article of The principle underlying this case, says Lord Chancellor Halsbury, is that manufacturer. It may often happen that people who know the " that nobody has any right to represent his goods as the goods of somebody article well enongh are totally ignorant of its trade source; and where the else" (74 L. T. Pep. 291 ; (1896) A. C. 204); hence the vital question is as fancy name has been rejected for registration because it does not to the representation,” and it appears impossible that, where the words give this indication, as in the Yorkshire Relish case, it would are part of the common stock of language, and are simply descriptive," appear to require strong evidence to convince a court that the user, any verdict of a jury can be satisfactory as to what such words may imply. of such name is in fact calculated to deceive purchasers as to the What is it that a jury in such case is called upon to decide ? It is this, trade source, about which the name ex concessis gives no indication. Howthat somewhere, and among some people, and under some circumstances, ever this may be, the evidence adduced in Powell v. Birmingham Vinegar there is a double entendre attached to the words. Even if we admit that Brewery Company (ubi sup.) did satisfy the court of this fact, and although the particular verdict were in fact true, and that in the case mentioned a decision on facts is no real authority for subsequent litigation, it certainly the facts were that 50 per cent. of the German manufacturers and 50 per would point to a strong inference that, wherever a manufacturer has been cent. of the Bombay millowners, and an indefinite crowd of up-country the sole maker of goods sold under a fancy description, such manufacturer natives, thonght the belting in question came from Reddaway, and the is almost necessarily, because he is the sole maker, identified for the purmajority of the remaining purchasers had no opinion and did not care, and pose of this common law principle with the goods so sold. We do not the ultimate few really knew who made it, it does not make the case a quarrel with this inference from the present judgment; but it would appear nsefal precedent. The assumption merely begs the real difficulty, for the certainly more reasonable that the manufacturer in such case should be lifficulty lies not in the conclusion, but in how such a conclusion can be able to obtain registration of the fancy name as a trade mark. It seems Legitimately made. The witnesses to such impressions are, from the to us, however, that the judgment of the Court of Appeal outstepped the Jature of their testimony, unsatisfactory, and in a keenly contested fight it mark when they indicated that an injunction would on these facts have is obvious that payment would suffice to bring as many for as against the been granted, even if the defendants had proved that the sauce sold by particular meaning they attached to words in ordinary use. If we consider them was in fact Yorkshire Relish. “Whether in the first case (i.e., if the proposition as applicable to some well-known article in ordinary use, the sauce sold by the defendant had been chemically demonstrated to be the difficulty becomes insuperable. Again, no ruling appears as to what Yorkshire Relish) he could do so if it tended to mislead, I have not now class of experts on the meaning of the words can be called. Is it the to decide, but I very mucb doubt it, and I think he could not,” says * ordinary and anwary purchaser,” the man in the trade with his natural Lord Justice Smith : (74 L. T. Rep. 519; (1896) 2 Ch. p. 90). It seems prejudice to one party or the other, or the up-country native, and, if so, to us that such a contention could not bear the test of argument. It might how many ? Who is the hypothetical expert that shall tell the jury a be that, if by registration the owner of the fancy name had a conclusive epade does not really mean a spade, but a spade of the particular statutory title to these words, he could prevent anyone using them; but the : mannfacture which the plaintiff desires to monopolise ? The Merchandise learned Lord Justice was speaking with reference to the common law prinMarks Act 1887 amply protects the “public,” in whose favour the principle ciple. We venture to think that the decision of the House of Lords in the applied in these cases is stated to have its origin. Hence we would camel-bair belting case gave rise to these obiter dicta, and that decision, it. Tenture to suggest that, where the words used describe in their primary must be admitted, gives some colour to the proposition. If, however, the and ordinary sense the article sold and nothing more, it should be the duty opinion of Lord Justice Smith, and apparently of Lord Justice Lindley.. of the judge either to withdraw the oase from the jury, or to direct the be a true expression of law, it leads to such astounding results, and ory that the plaintiff is not entitled to a rdict, that these words bear a creates monopoly so novel, that the attention of the Legislature, the further and different signification when applied to his goods.
recognised law-making machine of the Constitution, should be called upon.
to consider the matter. II. --FANCY NAMES,
We will consider the question apart from Reddauay v. Banham, and The use of a fancy name requires different considerations. To begin then endeavour to point out the fallacy, if any, of the application of that with, the uses of a fancy name adopted by A. raises an inference, both judgment in support of the present opinion. English law recognises one according to common sense and according to law, that such name may monopoly in the manufacture of goods—the protection given to the indicate that the person who uses the name is also the manufacturer of patentee and his licensees. Avowedly, at least, this is the sole monopoly the articles so designated ; hence it is natural that, where a rival uses given to the manufacturer. A manufacturer may, however, discover a the fancy name, his user is regarded with suspicion. The Act of 1883 “ secret process.” So long as the secret is kept, the manufacturer enjoys codified the law with regard to registered trade marks and names, giving a monopoly, not by law, but by his own inherent right to keep his secret be registered owner statutory protection, but leaving untouched the undivulged for his own purposes. When the patent expires, or the secret principles of common law wbich we are discussing in these articles. is divulged or discovered, the right to manufacture becomes publici juris, The right of registration has, however, an important bearing upon the and the monopoly ceases. recent decision of the Court of Appeal in Powell v. Birmingham Vinegar Powell for many years—and, as the evidence showed, to the present Brewery Company (74 L. T. Rep. 509 ; (1896) Ch. 54); and we venture time-has manufactured a certain compound used as a condiment, which he to think that, had the prior judgments in Re Powell's Trade Mark (69 has called “ Yorkshire Relish.” The method used by him is a secret, and L. T. Rep. 60; (1893) 2 Ch. 388), especially that of the late Lord Justice it would appear that he and he alone can to the present day produce Powen, been more considered, the Court of Appeal would have bad more Yorkshire Relish. This compound so designated is a well-known trade hesitation in drawing the inferences which they did draw from the facts article, nor is it feasible, without using a false description, to sell any before them. The difficulty that arises in reference to fancy names lies other compound under that name. It would appear then that, when once principally in the answer to this question: Does the name merely describe it is proved that any person is selling a sauce other than that made by the article sold, or does it both describe the article and identify that Powell, as Yorkshire Relish, such person is amenable to the Act of 1887; article with its manufacturer? A perasal of the judgment in Re Powell's but a penal liability under that Act would not per se protect Powell Trade Mark (ubi sup.) shows that the court were of opinion that prior against damage to his goodwill, and therefore it became necessary to to 1875 the appellants had used the words “ Yorkshire Relish” merely show that “ Yorkshire Relish " not only indicated that compound, but also 28 descriptive of the article, and not as a trade mark, viz., to give an indicated that Powell, and he alone, made it. If, however, the defendants indication to the purchaser “ of the trade source." If the Court of or anyone else discover Powell's secret, and they make a compound which Appeal were right in this conclusion, it seems difficult to see why through. is by chemical analysis proved to be Yorkshire Relish and nothing else, out the subsequent judgment they treat the words as indicating the what is the law ? plaintiffs' manufacture.
Certain points are clear, but for greater clearness let us call the comThe report of the findings of fact is meagre. The effect of the evidence, pound .. The purchaser who wants compound x asks for Yorkshire stated shortly, was that, if a purchaser asked for Yorkshire Relish he would Relish ; it is the conclusive and exclusive definition of x, and the expect to get the plaintiffs' sauce. This does not affirm distinctly that purchaser can only convey to the seller his desire for x by asking for the words really identified the plaintiffs as manufacturers, because it was Yorkshire Relish. The defendant desires, as he is by law free, to make and admitted that the plaintiffs were the sole makers, and the purchaser sell the compound x. He has discovered the exact method, and he desires who knew that the sauce was made by one manufacturer only, could, to use his discovery ; can he under the present law do so ? If he makes in buying the article, have no other expectation than to buy that maker's and sells it under any other name than Yorkshire Relish, he deceives the goods. However, throughout the judgments, the Court of Appeal draw purchaser ; if, however, he makes x and sells it as Yorkshire Relish, he is the inference that the words did in fact indicate the plaintiffs as liable to an injunction. In whichever way the proposition is worked out, manufacturers. Lord Justice Lindley says: “ The name not only denotes it becomes a reductio ad absurdum. The maker of x is either compelled a particolar kind of sauce, but it denotes the sauce which the plaintiff, to deceive the public or to desist from using his discovery; or Powell has, in und be alone, has hitherto made.” “It was well known,'' says Lord fact, a permanent monopoly in the manufacture bitherto anknown to law.
163. In the same period the total number from Scotland was 823, or about five times as great. The total number of English and Welsh appeals presented in the same period was 1244, or only about 50 per cent. more than the appeals from a country with a population of about oneseventh of that of England and Wales.
It is impossible to state with accuracy the proportion of appeals to the House of Lords to the total number of appealable judgments and orders. The figures necessary for such a calculation do not exist and are not procurable ; it is impossible to ascertain what orders, because made subject to an undertaking not to appeal, or for other reasons, are not the subject of an appeal. But approximately the result may be shown thus :
The suggested evasion of this apparently necessary dilemma is this : he is entitled to sell x as Yorkshire Relish, but he must differentiate it in such a way that the purchaser shall be informed that he is getting Yorkshire Relish, but not the Yorkshire Relish. The fallacy of this evasive argument lies in a petitio principii, viz., that“ Yorkshire Relish " is x and x alone. If, however, Yorkshire Relish means, as suggested by the Court of Appeal, x as made by Powell, then the discoverer who makes was made by Powell (for there is no other way) must, to that extent, uso Powell's goodwill or not sell at all. The suggested modification, so as not to mis. lead, comes to this, that, by using Yorkshire Relish, he indicates that Powell is the manufacturer, and by using the qualification he indicates that Powell is not the manufacturer.
It must be borne in mind that the common law principle under discussion gives no right per se to the word; it is different where registration gives this statutory protection, and if the same dilemma might arise in the case of a registered fancy name, the Legislature and not the judges are the creators of the dilemma.
In support of the above opinion, which we venture to think for the above reasons is 'unsound, the Lords Justices relied apparently on Reddaway v. Banham. The fallacy, if fallacy there be, in the application of the judgment in that case lies in this : “ Camel Hair Belting" is not a fixed compound capable of chemical analysis : it is an article made, it is true, of camel hair according to the skill of a particular manufacturer, and it stands to reason that there must always be essential distinctions between camel hair belting made by one manufacturer and camel hair belting made by another. It is not--as in the case of a sauce-a definite compound which can be proved by chemical analysis to be either the thing actually described or some other compound.
CIVIL JUDICIAL STATISTICS, 1894.
(Continued from rol. ci., page 604.)
III.—THE HOUSE OF LORDS. Several changes have taken place in the jurisdiction of the House of Lords in the period included in the comparative table.
(1.) As already stated, an appeal now lies in Admiralty cases (other than appeals from Vice-Admiralty Courts and Colonial Courts of Admiralty) to the House of Lords instead of the Judicial Committee.
(2.) Before the Judicature Acts there was a difference between the right of appeal in equity and that in common law courts. In the former, all cases, whether final or interlocutory, were subject to appeal to the House of Lords. On the other hand, there were no appeals in interlocutory matters to the House of Lords from the courts of Queen's Bench, Exchequer, and Common Pleas. Now, however, an appeal lies from“ any judgment or order of the Court of Appeal (39 & 40 Vict. c. 59, s. 3). Considering that the total number of interlocutory matters from the Queen's Bench Division are about a fourth to a fifth of the whole business of the Court of Appeal, it is obvious that this has greatly increased the number of matters appealable to the House of Lords. This change accounts for at least some part of the increase in appeals since 1875, which is shown in diagram No. 3. The average annual numbers of appeals presented from England and Wales, Ireland, and Scotland, and of judgments delivered, were as follows:
The state of the case may also be presented thus :
Appeal to the House of Lords.
1. There is a difficulty in estimating the proportion of affirmations to reversals and variations. The returns have from time to time been made according to different systems; and it is not easy to ascertain what are equivalent expressions in different returns. It is explained in the note to table C at page 92 that under “ Affirmed” have been included “affirmed with declaration or direetions," and " affirmed with declaration, direction, or finding,'' and under “Reversed " reversed with directions," " reversed with declaration, direction, or finding,” “reversed and remitted with a declaration,” and “reversed with question of costs to stand over."
One or two entries have been excluded from the aggregate of cases heard and determined. Even if, as is probable, this arrangement may not be in all instances accurate, any error will not, it is believed, be important. It may parenthetically be observed that it would greatly facilitate comparison with other systems of judicial statistics if there were a uniform mode of recording the decisions of courts of appeal; and it is hoped that steps may be taken to bring about uniformity in this respect.
Adopting the classification above explained, the percentage of affirmations to appeals determined coming from the United Kingdom is slightly less than it was, 1893-94... 61.9 1873-77...
64:8 1888-92... 67.7 1868-72
63:1 1883-87. 66:1 1863-67..
64.7 Appended are the figures for English and Scotch appeals. The Irish appeals are not given, the largest number in any one year being only
Appeals presented. Judgments delivered.
1893-94 1888-92 1883-87 1878-82 1873-77 1868-72 1863-67 1858-62
65.6 71.1 66.9 79.6 65:1 72.6 67.8 56:3
52:6 58.2 62.5 69-4 66.2 51.2 58.6 60.6
The maximum number of appeals presented, 86, was reached in 1885 ; the minimum, 39, in 1874. The highest average in any five years was attained in 1883-87.
Some figures for earlier dates may be given to show the small variations over many years in the number of appeals :
Average Annual Number
of Appeals Presented. 1830-34
74.6 In appeals from England and Wales there has been an increase of 60:0 per cent. (from 25 to 40) between 1858-62 and 1893-94. In appeals heard the increase has been a little greater (20 to 35).
There is a slight increase in the number of Scotch appeals in the period included in the comparative table (23 in 1858-62, as against 25 in 189394). There is, however, a remarkable decrease in the later returns when compared with those for still earlier periods ; from 1820 to 1834 the annual number of appeals from Scotland was nearly twice as many as the annual average number from 1858 to 1894. The number of Scotch uppeals is still remarkably large as compared with the appeals from England and Wales, and still more so in comparison with those from Ireland. As appears from the annexed graphic sketch, the Scotch appeals have in some years exceeded those from England. The disparity between the number of appeals from Scotland and those from Ireland is striking. In the 37 years covered by the table the total number of the latter was
Formerly the judges were often required to attend the House of Lords, to assist the House with their answers to legal questions propounded to them. From 1851 to 1856, for example, there were 43 occasions on which the judges attended. From 1858 to 1876 the number of such occasions was 58. Since the passing of the Appellate Jurisdiction Act 1876 the power of summoning the judges to attend has rarely been exercised. The last case as to which they gave their opinion was Dalton v. Angus, decided by the House of Lords in 1881, when seven judges delivered answers to the questions submitted to them.
The comparative table shows the number of claims to peerages submitted to the Committee of Privileges. and the results. Within the 37 years included in the table 39 claims were dealt with. The proportions in which the clains were for English, Irish, and Scotch peerages are remarkable. Of the entire number of claims 19 related to English peerages, 17 to Scotch, and only 3 to Irish peerages. Since 1877 there has been a distinct falling off in the number of claims. About two-thirds of the claims were made out. Under “ claims not made out” are included instances in which the claim was not established by reason of attainder, &c., and also cases in which, though the pedigree of the claimant ras
proved, the grant of the dignity was invalid; for example, the claim to the Earldom of Wiltes, in which it was held that, though the pedigree was reported proved, the patent created a mode of descent of the dignity unknown to the law; or the claim to the barony of Buckhurst, in which a clause in the patent transferring the enjoyment of the peerage on the bappening of a collateral event was held invalid.
Table C shows that a few divorce Acts are still passed, at the instance of petitioners in Ireland and India. Within the period covered by the table there were eighteen such Acts.
IV.—THE COURT OF APPEAL. By the Judicature Act 1873, s. 18, were transferred to the Court of Appeal all jurisdictions and powers of (a) the Lord Chancellor and of the Court of Appeal in Chancery, in the exercise of his and its appellate jurisdiction and as a court of appeal in bankruptcy ; (b) the Court of Appeal in Changery of the County Palatine of Lancaster and the Chancellor of the Duchy ; (c) the Court of the Lord Warden of the Stannaries ; (d) the Court of Exchequer Chamber ; (ei the Judicial Committee of the Privy Council upon appeals from judgments of the Court of Admiralty or from orders in Lunacy.
An important addition to the business of the Court of Appeal was made by the Judicature Act 1890 (53 & 54 Vict. c. 44, s. 1), wbich transferred to the Court of Appeal jurisdiction as to motions for new trials. By the Liverpool Court of Passage Act 1893 (56 & 57 Vict. c. 37, s. 10), an appeal lies from that court to the Court of Appeal : (Anderson y. Denn (1894) 2. Q. B. 222).
Another change of great consequence was made by the Judicature Act 1894 (57 & 58 Vict. c. 16.). It took away the right of appealing from orders allowing extension of time for appealing or, without the leave of the judge or Court of Appeal, from interlocutory orders, except in certain cases ; and it directed that appeals from judges as to matters of practice and procedure should be to the Court of Appeal.
With the exception of the first-mentioned Act, none of the above-named Acts materially affect the figures for the period covered by the comparative table at page 100. The Judicature Act 1894 not having come into operation until two months after it was passed (July 1894), only the figures of the Michaelmas Sittings of that year would be changed.
The chief results to be noted from 1876 to 1894 are a decrease in the number of appeals, an increase in the proportion of affirmations of the judgments or orders of the courts below, and an increase in the percentage of appeals heard to appeals set down for hearing.
In appeals to the Court of Appeal from all courts there is a decrease in cases set down and heard and an increase in the proportion of cases heard to those set down.
Bench, Exchequer, and Common Pleas to the Exchequer Chamber are not properly comparable with the appeals from the Queen's Bench Division subsequent to that period. The jurisdiction of the Court of Bxchequer Chamber under the Common Law Procedure Acts was very different from that of the present Court of Appeal ; many cases wbich could now go to the Court of Appeal were then disposed of in the Divisional Courts, and could not go further. “From the Courts of Common Law to the Exchequer Chamber,” said the Judicature Commissioners, describing the right of appeal before the Judicature Acts, error lies in certain cases, and appeal in others. Error is brought, as of right, on matter of law apparent on the record, on judgments on demurrers, on bills of exception or the improper reception or rejection of evidence, or for misdirection by the judge at the trial, on special cases, on judgmente non obstante veredicto, and for arrest of judgment. Appeal lies, as of right, from decisions upon points of law reserved at a trial. It also lies, but not without leave of the court, unless the judges differ, on motions for new trial on the ground of improper reception or rejection of evidence, or of misdirection by the judge. No judgment, rule, or order is appealable which does not fall within one or other of these classes of cases (First Report of Judicature Commissioners, page 22).
The total number of appeals of all kinds, including interlocutory appeals, has diminished. One of the first effects of the Judicature Acts was to increase the number of such appeals, and they reached a maximum in 1881-85, after the introduction of the Rules of 1883. They have since steadily fallen in number. In regard to these appeals, there is a striking difference between the two divisions. The interlocutory appeals set down and heard from the Chancery Division are about half as many as they were in 1876-80. Such appeals from the Queen's Bench Division are about twice as many as they were. In the former, the proportion of such appeals to the whose has fallen ; in the latter, the proportion, though not so large as in 1886.90, is considerably greater than in 1876-80.
The proportion of interlocutory appeals to the total number of appeals set down was as follows:
There has been a considerable increase, amounting to 32:1 per cent. since 1876-80, in the appeals from the Probate, Divorce, and Admiralty Division. Probate and Divorce appeals have increased 50 per cent. since 1881-85, but there is a decrease since the same date in Admiralty appeals of 42
per cent. Not less satisfactory, probably, is the reduction in the number of appeals entered, but for some reason not heard; it may mean a reduction of what Bentham termed mala fide appeals, that is, appeals brought for objects other than the ostensible objects.
The years in which there was the largest number of appeals set down for hearing were 1883 and 1884 ; those in which were the smallest number were 1893 and 1894. The increase of 7-2 per cent. in the proportion of appeals heard to appeals set dowu is probably indicative that appeals are more often brought to determine real questions than they once were. The first effect of the Judicature Acts was to increase the number of appeals, especially interlocutory appeals. They reached their maximum in 1884, and from that period there has been an almost uninterrupted decline.
The following statement shows the appeals coming from the Chancery and Queen's Bench Divisions :
* From 1876 to 1881 these Appeals include Admiralty Appeals. The decrease in Bankruptcy appeals is worthy of note. In 1891-94 they were only a third of the number in 1876-80. The reduction is most marked since the Bankruptcy Act 1883 came into operation. To the appeals included in table D must be added the appeals to the Divisional Court from County Courts, in order to obtain the total number of Bankruptcy appeals. But even after making these additions, it will be found that one of the chief differences between the Act of 1869 and that of 1883 is the small number of appeals under the latter.
16:1 5:3 per cent. per cent.
Here is seen a remarkable contrast. In the appeals from the Chancery Division there has been a decline of 16:1 per cent. since 1870.80. In the appeals from the Queen's Bench Division there has been an increase, thougb the number from 1891-94 was considerably less than in 1881-85 and 1886-90. The increase in the proportion of matters heard to matters set down in both divisions is probably a sign that appeals are seldomer brought for purposes of delay or in order to force a compromise.
The returns from 1871-75 as to the appeals from the Courts of Queen's
It is impossible to state accurately the proportion from year to year of appeals to judgments and orders which are appealable. The number of orders made by consent, or subject to undertakings pot to appeal, or for other reasons not subject to appeal, is unknown ; but, assuming that appealable judgments and orders vary on the whole with writs and other originating proceedings, it will be seen that the total appeals tend to
In round figures about twenty-five writs and originating summonses in the Chancery Division were issued every day during 1891-94. The number in 1871.75 was fourteen or fifteen. The months in which most writs and originating summonses are issued are June, July, November, and December. There is a falling off in the quarter in which is the Long Vacation, though writs may be issued in it; in this respect the difference between the four quarters of the year appears from the following statement of the total writs issued in the years 1889-94 :
No returns have been made since 1876 of the results of appeals from the Chancery and Queen's Bench Divisions. This defect will, it is hoped, in future years be remedied. The record of business in the “Weekly Notes” for 1894 has been examined, and the figures show that in appeals all kinds the affirmations were about 61 per cent., the reversals about 30, the residue being the variations. In the case of applications for new trials, about 71-2 per cent. of them were dismissed as against 28.8 per cent. allowed.
In the cases of the Admiralty and Bankruptcy Courts returns of the affirmations and reversals exist, and it will be noted that the proportion of affirmations to reversals or variations of the decision of the court below is increasing, In round figures, one in every three in the latter courts is varied or reversed. In most of the appellate courts of which returns have been obtained the proportion is similar.
It will be noted that there has been a very great increase of originating summonses. This movement began in 1883-84, and was the consequence of the Rules of 1883, which substituted for writs and petitions the use of originating summonses. As an illustration of the effect of these rules it may be stated that in the chambers of one judge of the Chancery Division the number of originating summonses rose from 209 in 1883 to 780 in 1884. In 1876-80 originating summonses were only about one-fifth of the total of writs and originating summonses; in 1891-94 they were more than one-half of the whole. Petitions also have fallen off, and the diminution would appear still greater if the comparison were with the figures before the Judicature Acts. The substitution of originating summonses for writs and petitions is the chief fact shown by the returns.
The contrast between the movement of business in the Chancery Division and in the Queen's Bench Division appears on comparing this diagram with that on page 41. Wbile the proceedings begun in the former have only of late fallen slightly, those in the latter have steadily declined. On the other hand, the actions tried in the Queen's Bench have risen, while in actions heard in the Chancery Division there has been a decline of about 35 per cent., and of more than 50 per cent. in other matters heard in court. The maximum was reached in 1877. Since 1884. there has been, on the whole, a decrease in the latter, no doubt in consequence of the Rules
1883; the tendency being to decide in chambers even important questions on originating summonses.
The annual averages of actions set down, &c., for the Chancery Division were as follows:
Actions set down. Actions heard. Other Matters heard.
The chief appeals from inferior courts to the High Court are stated in table H. They include appeals from County Courts, and special cases from quarter sessions and courts of summary jurisdiction. The contrast between the results of the appeals to the Court of Appeal in Admiralty and bankruptcy matters and from County Courts to the Divisional Court in similar matters will be observed. In Admiralty appeals less than onethird of the decisions of the courts below are affirmed, and in bankruptcy matters the proportion is low, though the figures are somewhat deceptive, since they give the proportion not to appeals heard but to appeals entered, Proportion of Affirmations to Appeals entered.
Admiralty Appeals from Bankruptcy Appeals from
It will be noted that summonses other than originating summonses have diminished very much. They steadily increased from 1876 to 1880 ; from that year they have steadily declined in number, no doubt partly owing to a change of practice as to time summonses. The average for 1891-94 was more than 33 per cent. less than in 1871-75, and about 50 per cent. less than in 1876-80.
The number of bills costs taxed, it will be seen, has risen since 1876. 80, but it has fallen since 1889, when the maximum number was reached. The total amount of costs allowed has also diminished, and the average amount of the bills is considerably less than it was. The decrease is accounted for in part by the withdrawal of the costs in company liquidations, to a considerable extent by the comparatively few orders for general administration of estates, and, to a slight extent, by the practice of the chief clerks assessing the costs of applications before them. The amount of costs so fixed is not recorded. The largest amount of costs ever allowed was in 1880.
The mode of recording the appeals from County Courts (other than Bankruptcy and Admiralty appeals) having changed from time to time, there is some uncertainty as to the true figures. Apparently such appeals have increased considerably--from 89 in 1876-80 to 290 in 1891-94-an insignificant number, however, in view of the fact that the number of plaints determined in 1894 was 731,297. The number of affirmations, if figures be correct, has increased in a striking manner--from 32:3 in 187680 to 65.3 in 1891-94.
V.--THE CHANCERY DIVISION. Proceedings in the Chancery Division are begun chiefly by writs and originating summonses. There are also petitions not in actions which are of the nature of originating proceedings; for example, petitions under the Lands Clauses Consolidation Act, the Settled Estates Act, the Married Women's Property Acts, and the National Debts Acts. Of such petitions it has been said that “ a petition is just as much litigation pending as a bill filed in the Court of Chancery, if there is jurisdiction to bring the parties before a court": (Re May, 28 Ch. Div., pp. 519, 520).
The following statement shows the average annual numbers of proceedings begun :
In the Chancery Division a large amount of administrative work is performed by the chief clerks and other officials. A rough measure of this is furnished by the number and amount of the accounts passed. In receivers' accounts there has been an increase in the receipts and disbursements, but the proportion to receipts of balances on accounts has decreased. On the other hand, there has been a remarkable decrease in the volume of “other accounts,” which include accounts of mortgagees in possession, partnership accounts, accounts of trustees and executors. This is ascribable to several causes, of which one of the chief is the transfer under the Companies (Winding-up) Act 1890, to the Winding up Department of the accounts of companies in compulsory liquidation, including various debenture suits. A second cause is the disuse of the practice of making orders for the general administration of estates (see Order LV., r. 10). A third cause may be the depreciation of property, which I am informed by some of the chief clerks has, in cases coming