conferred upon them by the County Court Acts.* The Legislature wisely determined, therefore, to entrust the local administration of equity to those judges who had so long been learning the need for it in their daily dealings with the disputes and grievances of the poor; and in so doing have adopted in the most significant manner the rule now under consideration. But, though the administration of justice by the same court and judges is always an advantage, it is, of course, quite possible that in a certain class of cases this advantage may be much less than others which would be gained by relegating them to a special tribunal. This is asserted to be the fact with respect to what are called commercial disputes. It is maintained by most commercial men that the ordinary courts of law are not competent to deal with questions of this kind. There can be no doubt that judges of the existing courts are often unable to grasp the real merits of a mercantile case, through their ignorance of the practice and customs of trade. It is equally true that a tribunal formed of men who are versed in business, would as a rule deal more prompt and even-handed justice, in such cases of purely commercial usage, than is to be got by an ordinary action at law. But I cannot see that this fact, or the satisfactory experience of the tribunals on the Continent, would justify the formation of commercial courts in this country with an exclusive and independent jurisdiction. For that jurisdiction would at once come into direct antagonism to the other civil courts, unless it were included in the ordinary scope and action of these courts. Those who adduce the success of the French tribunals in favour of independent courts of commerce in this country, forget that the conditions under which the French tribunals act are quite different from the conditions under which ours would act. There they have a special code of commercial law; here we should have only the general law of the country. Now the bulk of trade disputes in this country are of course based upon obligations and agreements which are the creatures of our positive law. That law is, no doubt, defective in too many instances. But it would never do to hand over disputes founded on such obligations to tribunals which would deal with them on principles entirely opposed to the law under which they were framed. As long as these laws exist, all cases coming within their scope must remain subject to their operation, and in this particular the administration of justice can only be improved by improving these laws. For instance, the Statute of Frauds has a section which is cursed daily by men of business as a needless obstruction to the enforcement of fair bargains.† But whilst it remains upon our statute book, it would be a violation of all principles of jurisprudence to create a court with

* Jurisdiction in cases of legacies, residuary estates, and partnership balances up to £20; over friendly and provident societies; in bankruptcies under £300; and over charitable institutions with annual incomes not exceeding £50.

t Section 17, which provides that no contract for the sale of goods for the price (or value, 9 Geo. IV., c. 14, s. 7) of £10 shall be binding where not actually delivered, or earnest given, or part payment made, unless a memorandum of the contract be made and signed by the party charged or his agent.

power to deal with cases coming within the purview of the section as if it did not exist. This, however, is the kind of power which would be claimed by men of business acting as an independent court of commerce, and for this reason they should not be allowed to withdraw from the ordinary civil tribunals of the country.

On the other hand, the manufacturing and mercantile classes, whose pecuniary interests in the administration of justice are larger than those of any other classes in the community, are fairly entitled to ask for such a tribunal as is best adapted to settle their own differences, so long as it does not conflict with our juridical system. This reasonable claim would be met if tribunals of commerce for the hearing and settlement of all commercial disputes were grafted upon the county, or other local courts, upon some such plan as that proposed by Mr. Denman in his "Merchant Shipping Disputes Bill" of last Session. By this Bill he proposed to constitute the county court of each important sea-port town a court for the determination of all differences and questions relating to ships and cargoes, with an unlimited jurisdiction, but with an appeal to the Court of Admiralty in cases above £50. The judicial element should be a county court judge or a stipendiary justice; the commercial element should consist of merchants, sitting to advise on points of usage as assessors, but without the judicial power given by the Bill.*

Third Rule. The third and most important rule implied as the fundamental principle I have proposed is, that as to the initiation of all contentious business the jurisdiction of the local court should be unlimited, provided the defendant is afforded a cheap and ready means of withdrawing the case from the local for the consideration of the superior court. To this rule there should be no exception, either as to the nature of the cause of action or complaint, or the area of jurisdiction. Whatever the ground upon which the plaintiff bases his claim, and whatever the amount of his claim, he should, in the first instance, be entitled to issue process either in the local court of his own district, in that of the defendant's district, or (where the cause of contention is local) in the county court of the district in which the subject-matter of contention lies.

Nothing can be more unsatisfactory than the existing county court jurisdiction. It is a great blot in the system, which greatly detracts from its usefulness. Founded upon a number of arbitrary rules, which in some cases make it practically, though not expressly, exclusive of, in other cases concurrent with, the jurisdiction of the superior courts, these rules have given rise to numberless and

He

Mr. Denman has since informed the writer that the Bill was not his. merely brought it in for the Newcastle Chamber of Commerce, with a view to a careful discussion of its provisions. He quite concurs in the view that no judicial power should be given to the commercial assessors.-[See next paper, p. 161.-ED.]

The inaccuracy of calling the jurisdiction exclusive is found in all the books of practice; and in the Report of the Royal Commission. Mr. J. Pitt Taylor carefully avoids it. (Observations at the end of the Report.)

needless difficulties, and to decisions of which some are contradictory and none founded in reason.

Where one man has a claim against another for debt or damage to the extent of £50, he may sue in the local court. But where the debt, however clearly due, is £60, he must either give up £10 of his just claim, or issue process in London through an attorney, the expense of which is never covered by the costs recovered. No right to the possession of, or title to real estate of any kind, can be tried in a county court.* Anything that savours of a title to landed property, or brings in question the validity of any devise, bequest, or limitation under a will or settlement, puts an end to a county court action, even where it incidentally turns up, unless both parties consent that the judge shall settle the immediate question in dispute. Again, if a man has been maliciously prosecuted, libelled, or slandered, if his daughter has been seduced, or an engagement to marry her broken, redress for these injuries must be sought in a superior court. It may be that these causes of action do involve interests so large as to make them fit subjects for the determination of a higher tribunal. But surely this is a question which should be settled by the parties themselves.

It is true that by consent the county court has power to try any action that might be brought in a superior court. But before this can be done the formal consent of both parties must be given by a signed memorandum. This involves an application by an intending plaintiff to an intending defendant before proceedings are taken. A formality of this kind is an effectual bar to any general use of the privilege, and has made the clause, in fact, a dead letter; for in most cases such an overture is rejected as arising from some sinister motive. It is open also to the serious objection that it places the man who has a bonâ fide case in the hands of an unscrupulous opponent, who, for purposes of delay or other reasons, wishes to drive him to the superior court.

To meet this difficulty, and get rid of the frequent and complex questions as to jurisdiction, we need only put in operation the simple rule now proposed; and as to the initiation of actions or suits, remove all restrictions upon the jurisdiction of our local courts of every kind, common law or equitable, commercial or admiralty. But at the first stage of litigation the defendant, whatever the nature or amount in value of the claim, should be entitled to obtain the withdrawal of the action upon any reasonable ground from the local to the superior court. The pecuniary amount of a claim is no criterion of its difficulty or importance. A debt of £1,000 is often as clearly due and as easily proved as a debt of £20, whilst questions of the gravest nature may be involved in a dispute about £5. While, therefore, the local court should be freely open in all cases so

The only cases in which ejectment may be brought are where the tenancy of premises not exceeding £50 per annum in rent or value has expired, or where half a year's rent of such premises is in arrear, and no sufficient distress can be had. 19 & 20 Vict., c. 108, ss. 5 & 52.

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 hçre 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. 30.