A.—s

6

I am well aware that on this subject a great deal of misconception and mistake exists among the public; that exaggerations have been resorted to, tending to bring the Court into popular discredit; and that the public themselves refuse or fail to take advantage of provisions of the law intended to obviate these very mischiefs. I would especially call attention to the fact that the minor jury system, introduced pursuant to the recommendation of the Judges of tho Supreme Court into the "The Supreme Court Amendment Act, 1862," has been for eleven years virtually a dead letter —not, as far as I know, on account of any fault or imperfection discovered in it, but simply because the public and the profession have not chosen to avail themselves of it; and yet under that system a great variety of cases can be tried at comparatively small cost and without pleadings, either by a jury of six, or by the Judge of the Supreme Court himself. That system, I emphatically declare, has never had a trial. I have no doubt that if it had been tried it would have been found at all events to some extent successful, and would to some extent have obviated the objections which are now indiscriminately urged against the efficiency of the Court ; and by this time the extent of the jurisdiction under it would have probably been increased, and the proceedings still further simplified and cheapened. Indeed it seems to me that one of the best reforms which could now be made would be by extending that system, and making it imperative in a large number of cases. The only real grievances that I am acquainted with, regarding the procedure of the Court, have respect to (l) costs, (2) tho want of professional skill in technical pleading, and (3) the insufficiency of our own rules and machinery in respect of equitable relief. With regard to the suggested enormity of costs charged to litigants, I have had, till very recently, scarcely any personal information. I have heard of very extravagant bills, but I have scarcely ever had any specific complaint that unlawful charges were made ; and I understand that the taxation in all parts of the colony is conducted on the same principles as in England, subject to a scale settled some years since as a reasonable one. But if there are real grievances on this subject, as I suppose there must be, I think it is most desirable that they should be inquired into and a remedy provided. For this purpose it would seem desirable that the public should be invited to give information, so that the minds of the Judges should be specifically directed to the particular mischiefs to be remedied by rules or legislation. There is no doubt that unnecessary costs are often incurred through laxity and rashness in pleading, entailing applications in Chambers for amendments, and the striking out of pleadings as embarrassing, and so forth; and I cannot help thinking that it would be desirable that the Judges should make some rules whereby tho costs of such proceedings, when clearly attributable to the negligence or unskilfulness of practitioners, should be made payable by them, and not by their clients. One of the greatest causes of unnecessary costs and delay, within my experience, arises from the reluctance of practitioners to demur to pleadings obviously insufficient in law. The heavy costs of preparing for trial, of the trial itself, and of proceedings after it, possibly including a new trial, all proving futile in the end, are not unfrequently incurred in cases where an early discussion of the legal merits on demurrer would ha7e settled the whole matter at a comparatively trifling expense. It seems to me that it might be desirable to give the Judges larger powers than they have, to force parties to raise the real questions of law involved in a dispute; and especially to order an argument in Court or at Chambers as to the validity of pleadings not demurred to, before settling issues of fact to be decided at a trial. It is to be remembered that the validity of a pleading, in substance, generally determines the very right of the party pleading. Again, as it really is not the decision of questions of law, but the determination of matters of fact, that is the most expensive part of the proceedings, it would seem desirable that the Judges should have ampler powers of examining parties, and forcing discovery and admission of facts, before settling issues of trial, than they now have. Probably, too, more care should be used in tho taxation to disallow the costs of unnecessary matter copied in briefs and cases, and that the assent of opposing solicitors in respect of such matters ought not to be taken as conclusive. Next, with regard to the equitable jurisdiction of the Court, it cannot be denied that the application of the rules of Common Law Pleading to actions for specific relief is sometimes quite impracticable and often embarrassing, and that some amendment of our rules in this respect, giving more elasticity to the system, and larger powers of inquiry and adjustment to the Judges than they now possess, and more simple and effective modes of settling matters of account and detail, is highly expedient; and, indeed, it may be expedient that some portion of the machinery adopted in England for tho Equity jurisdiction of the County Courts, such as was indicated for our District Courts in a Bill of last Session, should be introduced into tho Supreme Court. But however beneficial some such amendments of our procedure may be, and however urgent may be the necessity for them, I do not think that the time has yet arrived when it would be wise to attempt any extensive alteration of our system of procedure. Experiments have just been commenced on the largest scale in England, and on smaller scales in some other portions of the British Empire, the result of which it would be wiser for us to wait for than attempt to anticipate. The Legislature of Great Britain, and that of one at least of her more important colonies, have initiated new schemes of judicature and procedure, such as the Colony of New Zealand had long before foreshadowed by an attempt which certainly has not been wholly unsuccessful; and while it would be weakness for the Legislature and Judges of the colony to refrain from such immediate improvements in the details of her judicial system as may be manifestly and urgently required in the meantime, it would seem most short-sighted and foolish to attempt a radical reformation of our whole system before the experience of a few years has tested the merits, both general and specific, of those great reforms to which I have alluded. The new English Supreme Court of Judicature Act, which is to come into operation in the end of next year, has yet to be completed by the adoption of a body of rules of procedure to be made pursuant to its provisions. But it contains in its Schedule some very important rules, many of them similar to our own, and others which may be deemed fit for immediate introduction into the procedure of our Supreme Court.