that a plaintiff, if he pleases, may begin his action there, the defendant should be at liberty to obtain its removal without reference to the pecuniary amount involved.

At present, under one of the existing Acts,* common law actions of contract where more than £20, and of tort where more than £5 is claimed, may be removed by a defendant as a matter of right from the county court to the higher court on his giving security for the amount claimed and the costs of the action in the superior court. This provision 'might properly be retained. But cases may arise which would be of a nature to justify their withdrawal from the local court, although less amounts were claimed than those just named. And cases also may occur in which the condition as to giving security for claim and costs ought to be dispensed with, although the claim exceeds these amounts. To meet these cases there needs only a clause empowering the judges of the superior courts of common law and equity to order the transfer of any county court action or suit upon such terms as to payment of costs, or security for costs or otherwise, as they may think fit.†

But whilst the freedom of initiation in the local court should be without limit or restriction of any kind, so long as there is a corresponding liberty to transfer the cause to the higher tribunal, every one who has watched the working of these courts will recognise the necessity for the following rule :

Fourth Rule.-One distinct and uniform line should be drawn, below which the power of initiating contention should be confined to local courts.

Some attempt has been made to do this in an indirect way by the existing County Courts Acts. But human ingenuity could scarcely have devised anything more bewildering than the rules, intended, of course, for the guidance of non-lawyers, which point out where a person should sue in the local, where in the superior court. In no case is the plaintiff expressly forbidden to sue in the superior court. He only loses his costs if he does so in certain cases. If, however, the defendant dwells more than twenty miles from the intending plaintiff, he may sue in the superior court, whatever the amount of the claim, and he gets his costs. He has the same privilege if the cause of action did not arise wholly, or in some material point, within the jurisdiction of the court within which the defendant dwells or carries on his business at the time the action is brought. Few more intricate points of practice have been decided than those which bear upon the question here raised, as to what is a material point of a cause of action.

This will be shown by a single instance. A man entered into a written contract to take a certain number of bricks from a brickmaker. They lived each in a different county court district, though not twenty miles apart. The contract was signed at the house of

* 19 & 20 Vict., c. 108, s. 39.

† A similar power is now given by 9 & 10 Vict., c. 95, s. 90., but it is confined to cases above £5.

the purchaser, the bricks were delivered at the works of the maker. The man who engaged to take the bricks, after receiving part of them, refused to take any more. The brickmaker sued him in the superior court, and recovered a sum not exceeding £20. He lost his costs, because it was decided that the signing of the agreement was a material part of the cause of action.* The question where a man carries on his business, which is also involved in this rule, has given rise to much discussion and contradictory decision in the cases of a clerk in a public office, a foreman at a shop, railway companies, and surgeons practising out of the county court district in which they live.

By another rule as to jurisdiction, where a plaintiff not coming within the "twenty mile" and "cause of action" clauses just referred to, brings an action in the superior court, and whatever the amount he claims, recovers no more than £20 in contract or £5 in tort, he gets no costs unless a judge certifies that the action could not be brought in a county court, or that there was sufficient reason for bringing it in a superior court, and if he fails to get a verdict, the defendant is entitled to costs as between attorney and client. Again, when a plaintiff recovers by default no more than £20 in a superior court, he can only get his costs upon a similar certificate of a judge allowing them.†

The indirect attempt to create an exclusive jurisdiction in the local courts by these clumsy expedients of withholding costs, has, of course, quite failed to effect its purpose, whilst it has sadly narrowed their scope, and marred their simplicity and efficiency. The twenty mile clause has allowed the superior courts to be largely and ignominiously employed as a machinery for the collection of small debts. Even the barrier put up in the case of undefended actions for less than £20 has failed to prevent the superior courts from being very improperly used in trifling cases. Nor can it be matter of surprise that recourse is had to so ready a means of enforcing payment, so long as the rules are retained which regulate county court procedure in cases where the plaintiff and defendant reside at a distance from each other, or in different county court districts. Acting upon the absurd and mischievous notion that local courts should only settle local disputes, the existing Acts only allow process to issue in the plaintiff's own district when the defendant resides there also. In all other cases the plaintiff must sue in the defendant's district, however remote. He may, by leave of the judge of the district, where the defendant has dwelt or carried on business within six calendar months before action brought, get a summons issued against him in that court; or by leave of the court or registrar of his own court, he may have a summons from his own court. But in order to do this he must make oath that the whole of the cause of action arose in his own county court district.

*Norman v. Marchant. 7 Ex. 723.

† 19 & 20 Vict. c. 108, s. 80.

All these restrictions upon the issue of process in local courts are quite opposed to the practical adoption of the important rule already discussed, that the initiation of proceedings in local courts should have no limit as to the nature or amount of claim or the area of jurisdiction. If an exclusive power of initiation is to be given, it will be absolutely necessary that the rule should be fully carried out; that every complainant "should be the dominus litis, as in the superior courts, and should have the option of suing in whatever court he thinks fit; but that the court in which he elects to sue shall be empowered to change the venue at the instance of the defendant on special grounds." This is the simple but admirable expedient which was suggested so long ago as 1855, by one of our ablest county court judges. That the defendant should be placed at no disadvantage, Mr. J. Pitt Taylor proposes that the summons should contain a distinct notice of the defendant's right to change the venue upon his transmitting an affidavit to his own county court, stating that he has a defence on the merits, and that some good cause (to be specified) exists for its removal. This affidavit would be at once sent by post to the registrar of the plaintiff's court. If the plaintiff objected to the change of venue, he would have to show cause against the application, by an affidavit similar to that of the defendant. Upon these two affidavits the judge of the local court would decide whether the application would be granted or rejected. The only objection that appears to have been raised to this proposal is that it is complicated. But its author denies that it is complicated, and justly asks, "what can be more simple than the mere transmission of an affidavit?" Under these conditions, one broad line of exclusive jurisdiction as to initiation of proceedings might be safely drawn in all common law actions, certainly up to £50, if not higher. For the reasons which lead me to draw this line without any distinction as to actions on contract and actions on tort, I refer to the admirable argument on the subject contained in the observations just referred to. The rules here laid down are of course applicable to every kind of local judicature that may be established, and would include the equitable jurisdiction of our local courts. It would, however, be premature to offer any decided opinion as to the point at which. the line of exclusive jurisdiction in initiating equity proceedings should be drawn, though the limit fixed for concurrent jurisdiction will probably be found the proper line.

Procedure.-It has been urged as a ground of objection to any extension of the jurisdiction of our local courts, that it has no process for the development of the issue between the parties; and the separation of questions of law from those of fact. Of course if any system of written pleadings were found necessary for raising the issue in fact or law, they could be as easily adopted in county courts as in a higher court, just as some of the local borough courts of

Observations of Mr. J. Pitt Taylor, at the end of Royal Commissioners'

Report.

record have adopted the present system of common law procedure. But I venture to submit that no such process is wanted. The argument in favour of its rejection, even in the superior courts of common law, has been maintained with some force by a recent writer on the subject.* He urges that the written pleadings interchanged between parties to a common law action are framed, not with a view of informing the court, but of misleading the opposite side; and fail to give, or only imperfectly afford any information as to the real nature of the dispute.

There can be no doubt that the interchange of these written statements is the source of much delay and consequent expense, while it enables litigants to raise defences which could never have been raised if the parties or their agents had been brought together and obliged to state distinctly, in the presence of the judge, the ground or theory of their respective cases. He urges, therefore, that the natural course of a civil contention should be to bring the parties or their agents before the judge in the first instance, and allow him to elicit the real question at issue. This single meeting would supply the place of the present tedious and expensive course of written pleadings. If a substantial issue were raised it could be at once judicially reduced to writing. It would be beside the purpose of this paper to discuss this bold proposition, which deals in such an uncompromising manner with a science that has been looked upon with mysterious reverence by many successive generations of lawyers; and which, even now, when so much shorn of its former technical grandeur, is regarded by the profession as the only orthodox way of unravelling a grave dispute. But the common sense of the age and the experience-now twenty years old— of our county court procedure, will, I think, justify the opinion that no extension of local jurisdiction in civil cases such as I have suggested would make it necessary or desirable to introduce into its practice any artificial system of pleading.

These, then, are the conclusions to which I believe everyone must come who gives any attention to this important subject; that the broad and comprehensive principle upon which alone a complete system of local judicature can be built up, has only been very partially and imperfectly adopted; and that until it is fully adopted our local courts must fail to realise the great object of their constitution-a cheap, uniform, simple, and rapid administration of civil justice throughout the kingdom. These conclusions are stated, however, in no captious or unreasonable spirit. It would be equally unjust and unwise to complain that the genius of this country is empirical; that its advances in every direction of human progress are always experimental, and never the consequence of preconceived theories. For in this very fact lies the secret at once of our stability and our greatness. To such commanding advantages we may well

"Natural Law Procedure," by James Walter Smith, LL.D.

+ This method of oral pleading or loquela was practised in our Courts until the reign of Henry III.; probably much later.-Reeves' "Hist. Eng. Law," vol. 1, p. 95.

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make the sacrifice of a little paticnt waiting until each successful experiment has borne as its fruit the theory which underlies it. I would, however, confidently urge that this is now the position of the local courts' experiment; that the tentative legislation which, during the last twenty years, has so clearly proved their value, should be replaced by a general measure founded on the principle, and constructed with some such rules as I have suggested. I do not hesitate to say that no practical measure of law reform would confer greater benefits on the body of the people; and none, therefore, is more worthy of the earnest attention of the Department.

Mercantile Courts. By JAMES HALL, Newcastle-on-Tyne. PUBLIC attention has lately been directed to the efforts that have been made by the commercial community for the establishment of a more expeditious, less expensive, and more satisfactory means of legal procedure than at present exists for the settlement of commercial differences.

Acting upon the suggestion of one of the greatest living authorities on law, and as one of the principal promoters of a Bill laid last session before Parliament, for the attainment of greater facilities in the settlement of matters of dispute relating to ships and their cargoes, matters which above all others are apt to give rise to litigation, I shall endeavour to explain the principle upon which the above Bill was framed, and to show what has already been done in furtherance of the views of the commercial world on the subject.

The principle of having justice promptly administered, that on which the constitution of tribunals of commerce is based, is not new; nor is the practice of submitting merchants to the jurisdiction of their compeers of recent date. Antiquity furnishes more than one instance of it. The celebrated Montesquieu, in his work entitled "Esprit des Lois," says, "Xenophon felt the necessity of the consular jurisdiction, and Demosthenes, in his orations against Apaturius and Phormion, informs us that at Athens there were particular magistrates for commercial differences. These magistrates went on board of ships, listened to the disputes of merchants, and in order that the interests involved might not suffer from delay, they adjudicated thereon immediately. At Rome, also, there were judges for every profession, to settle disputes between parties of the same calling. They had absolute jurisdiction, and their decisions were

final."

If the legislators of Greece and Rome experienced the utility, or let us rather say the necessity, of mercantile courts, the same necessity has been equally patent to the legislators of almost all modern states. The consular jurisdiction was first founded in Italy, the cradle of modern commerce, and at the time of the Crusades, when