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CIVIL JUSTICE in the West INDIES: (JAMAICA.) 107
The next and almost chief objection to the mode of proceeding in a suit in equity,
Evidence—Mode
of taking in
Chancery.
is the manner of obtaining the evidence, to be laid before the Judge, who is finally to
decide thereon.
By the practice at Jamaica, the Master is the examiner, which we think some
improvement; and if his powers were extended to take examinations viva voce,and
to examine to all the points he thinks material, not only in cases referred to him to
report upon, but also as regards all examinations taken by him in chief, we
conceive that the administration of justice would be thereby improved.
But still we must confess, that, even under this system, the objection that the evidence
has not been taken, or the witnesses heard before the Judge who is finally to
decide the case, remains. It seems generally admitted, that if this difficulty could be
overcome, it would be a great improvement of the mode of proceeding in equity cases.
But with respect to England, it seems insuperable. At Jamaica, if a professional
See p.14, R.
person be appointed Chancellor, perhaps some approach might be made with safety
towards the superior mode of taking evidence in common law cases, by providing,
that in all cases of issues, when necessary to try matters of fact, the trial of the issue
should be before the Chancellor himself. The danger of the real object of the Judge
in directing it being mistaken in the court below, which is too frequently the case,
would thus be avoided; and as it is only the conscience of the Chancellor that is
required to be satisfied in these cases, he must be the best judge of the effect of the
proof in his mind.
As very frequent complaints have been made, and we believe with justice, of the
heavy expenses attending proceedings in the Court of Chancery in Jamaica, particularly
in cases of foreclosure, and in applications for the appointment of receivers, we
felt it our duty to direct our attention most particularly to this subject while there;
and although no specific case of complaint came before us, yet as the evil was most
generally spoken of, we must earnestly recommend, that in the appointment of a professional
Chancellor for this Island, his attention be, in the first instance, pointedly
directed to this subject, and to the framing of a new tariff for his court, under the
sanction of the Colonial Legislature. At present, it appears by the answer of the
Registrar, No 327, that he taxes costs by an Act which has expired; a practice that
cannot too soon be put a stop to.
We have already expressed an opinion, that there should be a general taxing
officer; and we think, that costs in general, should mean, costs actually out of
pocket, if not improvident.
We think also it would be desirable if the Master, in all cases, subjoined to his
Report, a general or special certificate, to be taken from his book of attendances, as
to the conduct of parties, and their tardiness, diligence, or delay, which the
taxing officer should be bound to attend to in his taxation; and while on this subject
of costs, it might be found beneficial, in order to avoid any invidious distinction, to
establish, as a general rule, that costs should be taxed by this officer, as a matter of
public and indispensable duty, imposed upon him in all cases, and thus spare the
delicacy of the client, and defend the interests of those whose opinion or judgment
is seldom asked on the question. In this way, no offence would be taken on either
side; and if full costs were generally allowed, the necessity of recurring to the client
for the difference between them and the costs, as taxed at present (an anomaly in law),
will be got rid of. It might also be advisable to relieve the Masters in matters of
mere account, by sending the reference on those points to a public officer of the
court, as sworn accountant, but not to be paid by any per centage on the amount.
This relief of the Masters, in matters of mere account and taxation of costs, would
tend to restore to them their ancient judicial character.
If the duties of the Masters were divided into judicial and ministerial, and the
former extended, and the latter as far as convenient transferred, the discharge of the
respective duties would, we conceive, be thereby much accelerated, and conducted
upon principles of greater uniformity.
Under the former list may be classed,—
His final decision on the sufficiency of an answer, as to all material points;—
references for scandal and impertience;—unnecessary length of pleading;—the
propriety of granting orders for time on further amendments;—to enlarge the time
p.15.R.
for publication on affidavit;—to order the payment of monies into court;—to secure
property,
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first report of commissioners on criminal and civil justice in the west indies (jamaica) |
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/ 100-109 |
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"extract from mr henry's report on the colony of jamaica / to jeremy bentham esq / with his best respects" |
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