The Daily Telegraph. FRIDAY, APRIL 20, 1883.

Daily Telegraph (Napier), Issue 3671, 20 April 1883, Page 2

The Daily Telegraph. FRIDAY, APRIL 20, 1883.

Tiiiv opening of the Surpreiuc Court sessions at Christchureh last week introduced the new Code of Procedure, and the first case under it illustrated some of the difficulties attending a fresh departure. Our Christchurch namesake has an article upon the subject, which, in view of the approaching sessions here, will be of interest to many of our readers. Our contemporary says that at the outset counsel disagreed as to who should have the right to begin, and his Honor appealed in vain to the Code to throw any light upon the matter. Under the old procedure, it appears, the general rule was that the plaintiff should have the first Avord and the last word; the new procedure allows cross-actions to he tried together as one action, so that the defendant in such cases is also a plaintiff in respect of his counter-claim. Each party, therefore, had a claim to the right to begin, and yet it was itpparant that both could not begin—the Code had not foreseen such a contingency, so the matter was left in obscurity. " The point will not strike the reader as being of any significances in itself, but it illustrates the extreme difficulty of providing for every emergency in a Code however well drawn. Further acquaintance with the working of the Act will probably disclose further omissions and obscurities, and there will be a good deal of litigation over mere matters of practice before the Act is thoroghly understood. It is a pity that the Judicature Commissioners who settled the draft of the Code could not see their way to follow the English J ndimitnro Acts of 18,3 and 1875 more closely, for in that c-axo the decisions of the English Courts on iiiutuia of practice would be a ready means of interpreting our New Zealand Act As it is, our Supremo Courts will have to be their own interpreters, and interpretation involves 1 delay and expense to suitors. The very feature of Monday's case, however, thatoccasioned the difficulty is itself one of the conveniences of the Act. The principle of trviii" counter-claims which the defendant mil v have against the plaintiff at the time of trial of the original action is new, and looks sensible. If A owes B a sum of money, and B sues him for it, it seems the shortest and best method to allow A to claim, as per contra, damages for any wrong that he may have sustained at the hands of B, instead of compelling him (as was heretofore the practice) to institute a separate action, have a separate trial, and pay separate toes. T]io Code allows parties to settle, once for all, the differences that they may happen to have with one another, and the judgment of the Court goes for the balance that may be found for the one side or the other. This avoids multiplicity of actions, a«4 therefore lessens expciwes, aiid it pa tie*

fics the very natural desire that litigants have to square everything, and start afresh with a clean sheet. Another feature of the new Code in its operation is Trial by Judge, with which the spectator has been familiarised in the District Court. The " twelve good men and true " were not to be seen in their customary seats on Monday. They will be duly grateful for this, we doubt not, and, so will suitors when they reflect how much jury fees add to their bills of costs. Apart from that it is well known that the presence of a jury tends to protract a trial, and often it happens that their careless or perverse findings cause the whole case to be gone over again. Juries are particularly useless in cases were questions of mixed law and fact are involved —and the first case in this (Christchurch) district happens curiously enough to have been such, viz., a case where the whole dispute was partnership or no • partnership. Repeatedly they are dismissed before finding their answers to the issues, and the matter is subsequently argued on the basis of the Judge's notes. In matters of pure conflict of evidence, or where the assessment of damages is the chief consideration, or where personal character is at stake, it is likely that the old jury system will be adhered to, though possibly a jury of four will as often as not replace the timehonoured jury of twelve.