THE COURT OP APPEAL.

Otago Witness, Issue 931, 2 October 1869, Page 2

THE COURT OP APPEAL.

Tiiß inconvenient absurdities which di«tingnwh our judicial system were forcibly. Ulutt»t«dia th« divcroe OMt

which has recently been tried. in, the 1 Supreme Court. The facts of thU case having been duly disposed of, the Judge pronounced his opinion that he had no jurisdiction in the matter; Let op readers imagine the position of the expectant petitioner at that moment. Eagerly waiting for the fiat which should relieve him of his bonds, he learns with dismay that the solemn investigation in which he had been en- ' gaged is practically to go for nothing, the Court havingno more power to deal with it than an ordinary Police Office. The depth of his vexation would probably lead him to ask why that fact was not discovered before the trial began; and it would probably occur to him—as ' a young, man from the country— that under such circumstances his expenses ought to be returned. to him. It seems scarcely credible at first sight that any doubt should have existed as to such a point as the jurisdiction of the Supreme Courtin divorce andmatrimoniaicauaes ; and it seems still more incredible that after a formal investigation of a divorce cause, the Supreme Court should confess itself impotent to deal with it. Such a lapse of justice is not calculated to soothe the wounds of matrimonial sufferers, or to excite any feeling of admiration for our judicial system. There is reason, however, to be thankful that it has occurred: for it brings the absurdity of that system so prominently forward that reform must promptly follow. It could never have been the intention of the Legislature, we presume, to withhold from the Supreme Courts of the Provinces the necessary jurisdiction in divorce and matrimonial causes. The Act of 1867 certainly declares that 'all petitions, either for the dissolution or for a sentence of nullity of marriage, shall be heard and determined by three or more Judges of the Supreme Court.' But it was probably an oversight which occasioned the omission of a clause similar to one in the English Act of 1857, enabling the full Court to direct that any question of fact may be tried before a single Jud^e, with a Jury. The practical effect of that omission, as His Honour pointed out, is that every petition must be tried when the Judges meet for the Appeal Court at Wellington. Had the inconveniences which must necessarily attend this state ] of things presented themselves to tho Legislature, the law would not have been allowed to stand as it does. There is something worse than inconvenience to be dreaded. The evidence, in cases where the parties reside at a distance from Wellington, must be taken on affidavit and under commissions; 'a practice '—said His Honour — ' which opens a wide door to connivance and collusion in suits of this description.' It is surely disgraceful to tho legislation of the colony that tho procedure of the Courts should be placed on such a basis. It is not a vory satisfactory thing to seek the assistance of the law under any circumstances ; but whon the accumulated evils of litigation aro presented in such a form as they are in tho present instance, a feeling of disgust is inevitable. Tho Act of 1867 must be amended next session. There is no reason why tho trial of divorce and matrimonial causes should be restricted to tho Appeal Court sitting I onco a year in Wellington. Suoh a rule j might possess a ridiculous rosomblance to tho old practice in England, when tho Houso of Lords formed tho only tribunal for causes of tho kind; but it has nothing olso to recommend it. Tho caso before us illustrates tho necesailv for amendment in another direction. So long as tho jurisdiction in such cases belongs exclusively to tho full Court in Wellington, tho full Court should ait more frequently than it does. At present it nits* only onco a year. In addition to the inconvemencea already alluded to, thin circumstanco entails a delay of twelve months before a final decree can ho pronounced. It is not in these cases only that tho present system works injustice. It has boon an acknowledged griovanco lor ft long whilo that the Couit of Appeal should sit onco ft year only, instead of two or throo time* a year. Tho practical wwnlte of thi»ay»Unn wore Minted out by Mr Traybm during the lato •mion, Important AcU of Parliament

remain inoperative-simply/ because Judges have no opportunity lof meeting for the purpose of .framing rules. One would imagine that nothing could be more a^siirdLj, but a much greater absurdity immediately presents itself. Cases are of daily occurrence in -which exception is taken to the ruling of a Judge ; but to -whom is the appeal made ? To the very Judge who gave the original ruling. Even if a Judge could be expected to set aside his own judgment when it is shown to . be wrong, there is clearly a gross impropriety in the practice which requires a Judge to review his own judgments. The interests of suitors must have been entirely ignored when such a practice was instituted ; still more so when the right of appeal was clogged with such inconveniences as it is. There are considerations of higher moment perhaps, which have nothing to do with the interests of litigants or the imperfect system of appeal. However great provinoialism may be as a colonising power, it is by no means calculated to work well in legislation. If petty Parliaments are at all open to objection, petty Supreme Courts are almost equally co. The legal intellect of the colony requires to be concentrated, in order fehat the highest intents of the law may be accomplished. As it is, the Judges are scattered up and down the land, meeting so seldom that they might almost be said not to meet at all. Apart from the practical inconveniences which have been already mentioned, there is clearly an immense loss to the country in this isolation of the Judges. It may very well be that the actual administration of the law is free from reproach : but no one will doubt that it might be vastly improved if it were placed in the hands of half a dozen Judges acting in concert, assisting each other in the decision of disputed points, and assisted in their deliberations by a large and powerful Bar. The unwritten law of England would never have possessed the authority it does had it represented the opinions of Judges who knew nothing of each other. Its authority is due to the fact that it represents the full body of legal opinion in its highest form ; that it is based on the elaborate dicta of Judges who sat together on the Bench, and enjoyed the advantage of consultation with each other. The Judges of New Zealand are eminently worthy of their position; but if their opinions were taken on the subject, we are sure they would readily endorse the opinions expressed by Mr Tbavees and Mr Stafford.