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"thus bound from using the advantage he has im- Equitable "properly gained;"* and "where relief would be Defences. given in a Court of Equity against a legal right,

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an injunction will be granted to restrain proceedings at law in respect of such legal right.Ӡ Any consideration, however brief, of the cases in which an equitable defence may be now pleaded at law would be worthless unless extended to a treatise. The cases in which Courts of Equity have hitherto interfered to restrain proceedings at law will be found collected and arranged in the learned and useful work of Mr. Drewry on Injunctions, a volume which must now become a text-book on the Common Law Side of Westminster Hall, and to which I must content myself with referring the reader.

* Lord Red., 127. Drew. on Injunct., Introd. x.
+1 Madd. Ch. Pr., 187.

CHAPTER V.--PROCEEDINGS ON THE TRIAL OF ISSUES OF FACT.

THE proceedings on a trial by jury and the arguments for and against the preservation of that ancient institution, have been fully examined by the Common Law Commissioners in their Second Report. Into these arguments it would evidently be out of place to enter at present. The reader must consult the Report itself, as it is only to those recommendations of the Commissioners which have been carried into effect by the Legislature, that it is my intention at present to call his attention.

The Commissioners were of opinion that in a large class of cases the intervention of a jury was unnecessary; and that in other cases such a tribunal was mischievous, from its inability to deal with them. Under the first head may be classed those cases in which the question turns on the legal effect of evidence or of undisputed facts, and in which the verdict of the jury necessarily depends on the direction of the judge. Within the second category are those causes which, when brought before the jury, it is found necessary to withdraw from them and to submit to arbitration: this class comprehends all those actions in which arise complicated questions of account, in which figures and vouchers must be referred to.

While of opinion that in the cases I have mentioned, the jury might advantageously be dis

pensed with, the Commissioners nevertheless did Trial by a not think themselves warranted, except in cases Judge. of mere account, in recommending that trial by jury should be superseded, unless the parties themselves preferred that the cause should be tried by a judge.

Trial by the Court or a Judge.

Trial by jury, accordingly, continues to be the rule, but the jury may in some cases be dispensed with; for the parties to any cause may, by consent in writing, leave the decision of any issue of fact to the court, provided the court, upon a rule to show cause, or a judge on summons, in their or his discretion think fit to allow such trial (s. 1).

The parties must obtain the consent of the court or a judge, in order to have an issue of fact tried by the court; but the judges are authorized to make a general rule or order dispensing with the necessity of such allowance, either in all cases or in any particular class or classes of cases which may be defined in such rule or order (s. 1).

A rule or order having been obtained for the particular cause, or the cause itself being one within any general rule or order issued by the judges on virtue of the authority thus given to them, the Issues of Fact may be tried and determined, and damages assessed where necessary, in open court, either in term or vacation, by any judge who might otherwise have presided at the trial thereof by jury (s. 1).

The proceedings upon and after the trial, as to the power of the court or judge, the evidence, and otherwise, are to be the same as in the case of trial by jury; and the verdict of the judge will be of the same effect as the verdict of a jury. It is expressly provided, however, that it shall not

Trial by a Judge.

Trials at
Westminster
and in
London.

be questioned upon the ground of its being against the weight of evidence (s. 1).

Where the Issues of Fact are left to the court, they need not necessarily be tried by a single judge. They may be tried by the judge, who would otherwise preside at the trial thereof by a jury, either with or without the assistance of any other judge or judges of the same court; or if the cause be a country cause, with or without the assistance of the other judge included in the commission of nisi prius (s. 1).

In order to give increased facilities for the trial of causes in Westminster and London, any one of the judges of any of the courts may, at the request of the Chief Justice or Chief Baron, try the causes entered for trial in either of the courts, on the same days on which the Chief Justice or Chief Baron, or any other judge of the same court, may be sitting to try causes, so that the trial of two causes may be proceeded with at the same time (s. 2). The trial of every cause before such other judge may, if necessary, be entered of record, as having been had before the judge by whom such cause in fact was tried (s. 2).

There need be no more well-founded complaints of delay in the Superior Courts; for now they may appoint and hold sittings either in Banco, or for the trial of Issues in Fact by judge or jury, at any time or times, whether in term or vacation, (not being between the tenth of August and the twentyfourth of October) (s. 95). And the several courts, or any judge thereof, may also make all such rules or orders upon the Sheriff or other person, as may be necessary to procure the attendance of a special or common jury, at such time and place and in such manner as may be thought fit (s. 59).

So much for the trial of causes by a judge Arbitration. without the assistance of a jury. The class of cases which it has been in practice found necessary to withdraw from a jury, and to submit to arbitration, are those in which arise questions of account.

With regard to these, it was suggested that the court or a judge, on the application of either party, at any time prior to the trial, or where the issue of fact was left to the judge, then the judge at the trial, should have power to direct the matters in issue to be referred to an officer of the court, or, in country causes, to the judge of any county court, or, if the parties preferred it, to an arbitrator appointed by themselves. The Legislature has adopted these suggestions; and a reference to arbitration may now be forced on a party, however unwilling he may be to submit to it, and however desirous to leave his case in the hands of a judge or of a jury. The Commissioners were of opinion that "provisions for securing, as far 66 as practicable, a continuous process to the "end of the arbitration, and an abolition of those "frequent adjournments which are at present the "bane of that mode of proceeding," should be made, were effect to be given to their recommendations. The only provision however, that has been made is one prescribing the making of the award within three months (s. 15). A reference, if made to a lawyer appointed by the parties, may nevertheless continue to be the tedious, expensive, and unsatisfactory proceeding which it has hitherto been; for the costs to be incurred in three months may easily be made to exceed the value of the subject-matter in dispute. Any party to an action on whom an arbitration is forced, should, therefore, leave the reference to be made to an officer of the court or to a County Court Judge. Neither will have any interest to prolong the proceedings by frequent adjournments, and the conduct of

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