The New Zealand Times (PUBLISHED DAILY). THURSDAY, SEPTEMBER 28, 1882.

New Zealand Times, Volume XXXIX, Issue 6692, 28 September 1882, Page 2

The New Zealand Times (PUBLISHED DAILY). THURSDAY, SEPTEMBER 28, 1882.

The public have not yet realised the fact that the principal Bills prepared by the Judicature Commission are now law, and will Come into force at the beginning of next year. We have been so long accustomed to look at a reform in the system of the procedure of the Courts as a thing so difficult to accomplish, as almost to doubt the possibility of its being effected in our time; but, by the determination of the majority of the members of the Commission, a code has been framed, and, by the forbearance of members of both Houses, it has beeu passed. Among the many good laws made by the present Parliament, we venture to say this is the most important. Not that the Parliament (vill be entitled to much credit if the system succeeds, for probably not one-third of the members of either House read the code through. They wisely took it as it stood, and, subject to a few alterations made by a Select Committee, passed it as remitted from the hands of its compilers.

In this work we are following closely in the footsteps of the English Parliament, but we are able, with less difficulty, to obtain greater simplicity, from the moresimplecompositionofthe existing system with which we have had to deal. But there is one matter to be regretted, and that ‘is that the House did not do its work thoroughly, but adopted a compromise in this question of judicial reform. The Commission presented two principal Bills, containing codes respectively for the Supreme Court and for a system of local Courts, which should abolish and take the place of the District Courts and Resident Magistrate’s Courts ; but the House, pleading want of time, dealt only with the first, and have for the present left the constitution and practice of the inferior Courts where they were. We fear that many difficulties may arise in practice from a want of accord between the two systems. The whole work of the District Courts should have been thrown into the Supreme . Court, so as to test the new system thoroughly and at once, and two Courts of concurrent jurisdiction to a great extent should not have been left as they are now. The Government and the House have not, apparently, thought fit to consider the question of increasing the Judges’ salaries, as recommended by the Commission, nor have they realised the fact that the introduction of the new code with its simplified practice and reduced costs will surely bring a rapid increase of the litigious business of the Court, and that to meet this there should be an increase in the number of the Judges. We have before pointed out that if the new system is to have a fair trial it must be placed in the hands of men capable and willing to understand and carry out the spirit of this reform, which is to bring cheap and speedy law within the reach of the people, and to permit the man of moderate means to enter into litigation with a powerful and wealthy opponent without the fear of being ultimately crushed by his adversary’s length of purse. To attain this end the number of the Judges should be increased, and such salaries be given as would enable us to command the bast talent, as we have said; but, perhaps, even more important than this is the appointment of good Registrars, upon whom so much of the administrative work of the Court necessarily falls. Hitherto there has been no recognised uniform practice among the Registrars in the different districts, and the taxing of costs has been eminently lax and unsatisfactory. But the general reader will ask, what are the changes which this enactment has brought about? They are shortly these: In place of the long, cumbrous, and intricate pleadings in an action which take months or perhaps years to elaborate, at the serious sacrifice of the client’s patience and pocket, there is substituted a simple system by which, the plaintiff makes his statement of claim and the defendant his statement of defence. There can be no demurrer to the sufficiency of the pleadings on either side before verdict, nor proceedings in the nature of error afterwards, so that there will no longer be the same need for couching the pleadings in the same precise verbose and] technical manner as obtains at present. The argument, and decision of points of law involved, in the questions, at issue, and which must necessarily arise in many case?, are in future to be simply taken, if the Judge shall think it necessary, before the trial, or, where no jury is called, can be argued during the hearing of the case. The abolition of demurrers is one of the chief reasons which cause a part of the legal profession to disagree with the Act. It is said that the present method of pleading, by which each party replies to the other so long as he has anything hut a flat denial to say, and during which course any pleading that does not form a complete answer to that to which it is a reply may be demurred to, is the surest and only way of winnowing out the final questions on which a verdict is to be given. But this is a fallacy, for so long as the present system continues each pleader puts forward as little of his case as possible, knowing that he will have a reply to any defence which may be set up against his first pleading. But where the plaintiff and defendant can only set out their cause of action or defence once, they are sure to set out everything which may be material to their success. In the District Court this method of pleading has been in vogue for many years, and has been found sufficient. It is true that cases tried in that Court have not been for large amounts, nor have the intricate questions which arise sometimes in equity cases been left to the decision of the inferior Court, but given to the Judge with large powers as to amendments, adjournments, and doing justice irrespec tive of rule when the established practice is deficient. We cannot nee any reason why this method of pleading should not be amply sufficient for the purpose aimed at —the ascertainment of the truth, and the establishment of right. These arguments are, however, to meet the doubts felt by the gentlemen who will have to conduct their clients’ cases under this practice. The public do not, and never could, see any reason why a simple statement of fact from both sides should not be sufficient to enable a cause to go to trial. One amendment, which however the public will understand and appreciate to the fullest extent, is the result achieved by the pruuing-knife which has been applied to lawyers’ costs. These have from ancient times been built up on a system of unreality. The difficulty and trouble experienced by the lawyer in working out cumbrous legislation has led to his eking out his costs by means of charges which in any tiade or in any other profession would not be endured. He could not charge according to results or according to the value of the claim at stake, so he, perforce, employed this fabric of fiction to enable him to obtain the hire he deemed his labor worth. The community cannot be too thankful that this system has been broken down, and that for the future a defeated litigant will only have to pay such costs as he could have ascertained before he began his action, and a lawyer may, without a breach of professional etiquette, contract with his client beforehand the amount he is to receive. There will thus be_ no inducement to protract the litigation, but the reverse ; and, though the fees will be smaller, wo shall be much surprised if the increase in the number of cases do nof give solicitors no cause to be dissatisfied. The only further alterations in the law, caused by the Supreme Court Act, which we shall notice now, is the first blow that has

been struck at the jury system. "We have before expressed our opinion, in , no undecided terms, that trial by jury, at least in civil cases, has been found unsatisfactory, and must sooner or later be abolished. We regret that in this Bill the question should have been tampered with, not settled; for in cases where a jury is employed it is for the future to consist of four, except where large interests are involved; and cases can only he tried without a jury by consent of both parties (for either may obtain a jury), which is practically how it stands at present. There is ample time for the Act to he fully considered before it comes into operation, but this time should be taken advantage of by the officers of the Court and the profession, so that it may next year spring into active operation, and at orfee justify the trouble that has been taken in framing it and the opinion of those who feel confident in its sue less.