THE NEW PROCEDURE.

Daily Telegraph (Napier), Issue 3548, 22 November 1882, Page 4

THE NEW PROCEDURE.

The new system of Supreme Court procedure is to come into operation at the commencement of the new year. Seven weeks, therefore, only remain between the present time and then, and it is very possible that if people who contemplate litigation were aware of this, they might stay their Land until the new year brings in the new regime. It is impossible to tell with certainty whether the new system will prove a cheap system in its working until we have had some experience of it; so we cannot advise any reader of ours who happens to stand on the edge of a Supreme Court action, whether it would, be worth his while to postpone proceedings until next year. "When a new procedure is first adopted it is generally found to bring a certain amount of attendant expense in the mere learning to understand it. The best drawn statutes have repeatedly afforded much contentious litigation over their true construction, and that has always been a favourite argument —and, so far as it goes, a strong argument —with those who oppose reform of existing procedures. At great expense we have learnt what the old Supreme Court Act and its rules mean, but now it will require to be learnt all over again. It is therefore quite possible that those who aro the first to enjoy the new regime will be the first to be dissatisfied with it. But, this disadvantage apart, we have little doubt but that the new year will mark an important era in the procedure of our higher law courts, and that both the expense and the delay that marked the old system will be substantially lessened. If the newly-passed Judicature Acts did not bring about this result, it would be a great pity. The public are heartily sick of the old system, as the voice of the Chamber of Commerce has repeatedly made known, and the profession, on their part, are prepared to admit the old machinery to have been illadapted for practice, though probably well enough designed. There are several new departures, to which we fpropose on subsequent occasions to allude, as circumstances from time to time shall arise to make them of public interest. In a previous article we made reference to the new departure in the matter of trial by jury in civil cases. It is in the direction of the abolition of juries and the handing over of their functions to trained judges. This is not to be regretted, but it is exceedingly remarkable, as the jury system has been one of the most distinguishing features of English law, and is spoken of by the older jurists in terms of extravagant reverence and praise. It appears, however, in all but criminal cases, not to be suitable to modern requirements, except to a limited degree. Another matter that we have outgrown is the system of technical pleading in use among our forefathers. A suitor had to lay his claim in certain formal terms of expression, which hardly any unskilled person could understand, under pain of losing his whole cause of action. If he neglected to allege certain matters which his unassisted reason would never have imagined necessary, he lost his case, and was adjudged, to 'go thereof without day, &c.,' whatever that may mean. This technicality in pleading was very amusingly treated in some clever verses that appeared, if we remember rightly, in the Pall Mall Gazette some year 3 back, being a series of travesties of leading cases. 'J he concluding stanza of the case of Dovaston t. Payne as it appeared in verse ran : — " For special pleading was then of might, Free and fair is tho kind's highway, ( And of Payne or Dovaston which had the light, Is hid for ever, and eke a day." Since Payne and Dovaston, may have come away Jfroni the Courts' without it being apparent' which had the right,' the matter being decided on technical grounds that did not affect the merits. Bad. as this system was in its operation, it received great praise in its day. An eminent text-book writer on the subject commends its ' tendency to prevent obscurity or confusion, prolixity or delay;' words which can scarcely now be regarded, otherwise than as ironical. Under the present system the old technicality of pleading did not greatly prevail, though within our own Supreme Court it can said of many suitors that ""Which had the right " Is hid for ever and eke a day." Under the new system a further departure I from technicality has been made, and some of the precedents of forms of action read quite colloquial. Thus, if a person wishes to sue another for assault and battery, the whole of his pleading is this— The Plaintiff says— 1. On the day of 188 , the Defendant assaulted and beat . the Plaintiff. 2. The Plaintiff prays judgment for £ — compensation. Nothing could well be shorter than that; and so in other cases. It seems, therefore, that special pleading is to become a thing of the past, and it will not be greatly missed if the result of its abolition is to enable the true merits of cases to be decided ; for that is the primary object of all Courts of. Law,