Lapas attēli
PDF
ePub

legal procedure. But as to all courts subordinate to High Courts, there seems to be no reason why the gradation of courts and the order of preferring appeals from one court to the other should not be uniform and be prescribed in the Code of Civil Procedure by which all those courts are now alike governed.

I have alluded to a practical defect in the Indian procedure law which needs amendment both for the purposes of litigation out there, and as an essential preliminary to a restriction upon the right of appeal to the court here.

Considering that the courts in India try civil suits without the assistance of a jury, and that, except in the High Court, only one judge presides in each court, it is undesirable that, where the judgment of the Court of First Instance upon the issues of fact is overruled on regular appeal, there should be no further appeal upon the facts. Without going into any lengthy reasons why this should be, I content myself with appealing to the experience of those acquainted with the system of special appeals whether it is not so. But if the Court of First Instance and the Court on Regular Appeal have concurred in their view of the evidence, there is then, I consider, a reasonable certainty that the right conclusion has been arrived at. It is not possible, in any human system of law, to provide absolutely against all ‘miscarriage; there must be a limit to litigation somewhere, and it is a reasonable, and will generally be a safe restriction, after two courts have concurred in their conclusions upon the facts, to limit the right of further appeal to a special appeal upon the law of the

On the other hand, anything short of the concurrence of two courts upon the facts of a case has, I maintain, been practically proved to be unsafe and unsatisfactory. It must be remembered that the Code of Civil Procedure provides that, at a certain stage of the suit, the parties or their advocates are to appear before the judge of the Court of First Instance, who proceeds to ascertain and settle, in à series of formal issues, the questions of fact and of law which are in dispute between them. The issues in the Indian system of pleading, state in a single explicit form of words each question of fact or law in dispute in the suit, and the judgment of each court upon each issue is or ought to be discernible. It would thus be quite practicable, where the court on regular appeal concurred with the lower court upon some of the issues of fact and differed from it as to others, to limit the right of further appeal upon the facts to those issues of fact upon which a different view of the evidence was taken by the lower appellate court.

It is obvious that if we are to apply some limitation to the

case.

right of appeal to the Court in this country, suits in India should not only have been subjected to the same procedure, but should have been adjudged by similar grades of courts. It would occupy too much space to suggest in detail the best gradation of the courts in India. I will only say generally that the rule in Bengal, that the regular appeal in suits above 5001. in value lies to the High Court seems a desirable one. In Bombay the High Court must certainly hear fewer regular appeals than it ought, and in Madras the rule is so variable that the suitors in some provinces are unluly favoured. The rule in Madras, that the Civil or Zillah Court is the Court of First Instance in all suits from 1000l. in value upwards is greatly to be preferred to the rule in Bengal and Bombay, where an unlimited jurisdiction is given to an intermediate court. The liinit in Bombay for the jurisdiction of Munsiffs is, I certainly think, too high, and the limit, as it exists in Bengal or in Madras, is better, though it might, I think, be advantageously extended to 2001. in place of 1001.

In conclusion, I recur to the principle that the law of the Court of Appeal here must be regulated so as to harmonize with the law of the courts appealed from; and what I propose as to appeals from India is to extend to the Court here the principle which governs the right of appeal in India. The result would be that where two courts in India had concurred in their conclusions upon the issues of fact in a suit, the right of appeal to the Court here would be restricted to a special appeal upon the law in the case, assuming the facts as concurrently found by the two courts in India. Let us now see what would be the probable practical operation of this principle upon appeals to the Court here. The effect would be, that in all suits from 10001. in value, that is in all suits now appealable as of right to the Judicial Committee, the right of appeal upon the facts would be restricted only when and so far as the High Court had concurred in its appreciation of the evidence with the Court of First Instance, which would ordinarily have been the Zillah or Civil Court. In suits between 5001. and 10001. in value, special grounds would have to be shown, as now, to have an appeal allowed at all to the Court here, and then the right of appeal upon the facts would be restricted only when and so far as the High Court had concurred with the lower court in its findings upon the issues of fact. Lastly, in suits below 5001. in value, the appeal to the Court here, even when special leave to appeal had been obtained, would always be limited to an appeal upon the law of the case, as such a suit would (with an uniform gradation of courts in India, such as I have suggested) have gone through three courts in India, and some two of them (though not necessarily including a High Court) would have concurred in the findings on the issues of fact. Taking these three classes of suits in order, is the operation of the principle I have proposed unreasonable, or likely to be unsafe ? Surely, if the application of the pecuniary mode of limitation is justifiable at all, it may be well applied to suits below 500l. in value, so as to prevent the facts being discussed before the Court here for, always the third, and for generally the fourth, time in the course of the litigation.

Not much objection can, I think, be made as to the operation of the restriction upon the second class of suits, in value between 5001. and 10001. At present special leave must be given to admit an appeal in such a suit at all, and it would not be unreasonable to lay it down as a rule that only the special importance of the questions of law involved can justify the admission of the appeal. But supposing the rule to be, as I have suggested it should be, that in suits of this value the regular appeal should lie to the High Court, the whole case upon the facts, as well as the law, would still be open on the appeal before the Judicial Committee, excepting only when and so far as the High Court had concurred with the lower court in its findings upon the issues of fact.

There remains only the first class of suits, amounting in value to 10001. It has, I believe, been discussed in this country, whether it would not be advisable to restrict all appeals from India to appeals upon the law. It is urged, I believe, in favour of the proposal that in suits from India the evidence is almost entirely that of foreigners whose languages and manners are unknown to the judges of the court in this country ; that the courts in India which have tried the suits are, on the contrary, presided over by judges who, if not natives of the country, are alınost always men who have spent many years there, and are thoroughly acquainted with the languages and habits of the people, and further, that it is already a maxim of the Judicial Committee, never, except under very peculiar circumstances, to reverse a judgment of the courts in India upon the facts, and that to restrict the right of appeal to questions of law would not be any practical limitation of the existing right. Those who oppose this proposal, and desire to retain in its entirety the present right of appeal upon the whole case, as well facts as law, allege that it is necessary, for the sake of security against injustice, to do so, as not unfrequently, even in the High Courts, the duty of sifting the evidence is performed in a very perfunctory manner, and they assert that appellate courts in India are found by experience often to deal with evidence in a one-sided and unsatisfactory manner, so that it is of frequent occurrence that the Judicial Committee restores the judgment of the Court of First Instance upon

the facts, in reversal of the view of the appellate courtIt is undeniable that instances can be produced in support of these latter arguments, though, like most thorough-going arguments, they are a good deal overdrawn.

It is true that appellate courts in India, presided over by a single judge, often differ from the Court of First Instance on issues of fact upon grounds that are most unsatisfactory. The High Courts in India know and feel this perfectly, and it is for this very reason that I have urged the necessity of altering the procedure in India as to special appeals, and allowing a further appeal upon the facts where the first appellate court has differed in its view of the evidence from the Court of First Instance. One consequence of the existing procedure is that suits are often appealed home where the facts are open again to discussion, in which the High Courts would have done complete justice had not their hands been tied by the law as to special appeals, and their judgment is reversed in this country, and an apparent slur cast upon the efficiency of the High Courts which is really wholly undeserved. It is also true that the Bar of the High Courts is not equal to that of the Judicial Committee, and a burden is sometimes cast upon the judges which would in reality be borne by the Bar in this country; the evidence is sometimes imperfectly laid before the High Courts, but I can answer for it that the judges are then in the habit of studying in private the evidence that ought to have been discussed before them in public. This is a disadvantage, no doubt, but in suits amounting to 1000l. in value, it is rare indeed that the parties do not retain efficient and conscientious advocates.

A special circumstance has recently lent force to these arguments. The Government in India, stimulated by the financial panic, has of late been far too eager to reduce the number of judges in the several High Courts in India. In ope at least of those courts-and that the most important the judges have been unduly urged to regard the reduction of the files as the one great object to be kept in view, and hasty decisions have, as usual, begot increase of litigation in the Court of Appeal here. This spirit of false economy, for which this country is now paying in new judicial salaries, still exists in India, but it is a temporary and removable cause of evil. With High Courts not unfairly overworked, it is unreasonable to suppose that the facts in suits amounting to 10001. in value would not be fully discussed at the Bar, and carefully considered by the Bench. If two or more judges of a High Court have fully concurred with the judge of a Zillah Court in their view of the facts in a case, it seems a needless precaution to leave all the facts open to further discussion in the Court of Appeal here. It seems a reasonable and safe course to check undue litigation by restricting in such cases the right of further appeal to the law of the case, Those least disposed to regard favourably the efficiency of the courts in India, must admit that the judges are experienced in dealing with native evidence; and if we secure a certain concurrence of judgment upon the evidence in the courts there, we may, I consider, reasonably rest satisfied with the correctness of the conclusions arrived at. The restriction upon the right of appeal which I have now suggested does not involve any sweeping or radical change of system; and if it should not materially affect the number of appeals to the court in this country (though I confidently expect that it would have this effect), it will certainly, in a large number of cases, greatly diminish the time necessary for their discussion and disposal.

III.-INTERNATIONAL COPYRIGHT.

[ocr errors]

as

THE Anglo-American question of copyright is the subject

of this article, revived that question has been, although probably not much advanced, by the epistolary skirmishing of American and English publishers and authors, which took place in the months of September, October, and November last, upon the pages of our contemporary

, the Times. Our contemporary himself deigned, on two several occasions, to interpose his good offices in the strife ; exhibiting, however, on each occasion, the characteristic one--idednes of the English advocate, and not the evenbalance of the international mediator. The affray was provoked by a random but offensive shot, fired from the English quarters, under the ambush of the pseudonyme or anonyme of " Traveller,” by some English gentleman, who, fancying he had conceived a witty thing, was not deterred by the injustice of it from pronouncing it, and therefore boldly taunted the Americans with the depredations of their “ literary Alabamas." Some brisk and heavy firing immediately ensued, a firing which was vigorously maintained on the side of the Americans, and as petulantly replied to, as it was pettishly provoked, upon the English part; in short, the only good English shots were directed against the English side. The attack, we need not mention, is one which has been long anticipated, and long premeditated ; and even apart, therefore, from the opprobrium of the epithet

« iepriekšējāTurpināt »