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to see the diminution in the functions of the depart⚫ment which he controlled. The maintenance, however, of the connection between the Dominions and the Colonial Office is theoretically indefensible, it is undoubtedly a correct instinct which holds that these matters should fall into the sphere of the Prime Minister of the United Kingdom, with the aid of some other Minister for the routine and unimportant work. The duties of the Colonial Secretary would then be confined to the affairs of the Crown Colonies and the Protectorates, in themselves a task of the greatest importance and value, which demands from the suc cessful occupant of the office qualities not in the slightest degree suited for dealings with the selfgoverning Dominions.

It is also clear that, as suggested in Canada, the position of the Governors-General is decidedly affected by the new proposals. In 1911 it was desired by New Zealand to eliminate the Governor-General as a means of communication and to confine to the High Commissioners in London the channel of correspondence.13 This scheme was not seriously

pressed even by New Zealand and was

channels of communication.

ultimately

dropped, but that was due largely to the fact that the High Commissioners, as mere officials, were felt to have no superiority over the Governor-General as The position is made very different by the development of the conception of resident Ministers of Cabinet rank, and it is inevitable that the Governor-General should cease to Iviews of the Dominion to the British Government, represent the natural mode of communication of the and become more and more merely the constitutional

head of the Dominion Government.

The alternative, to make his position in effect that of an ambassador,

is worth consideration, but it leaves unsolved

the

question of the filling of the place of the head of the

Government, which at present is automatically

13 Cd. 5745, pp. 75 sq.

and

simply provided for in this manner, while for the time being at any rate the necessities of communication between the British and Dominion Governments may be adequately served by the presence of a resident Minister in the United Kingdom. The provision of an effective substitute for a Governor-General appointed from the United Kingdom is not, of course, a matter of supreme difficulty, but that is a question which may safely be left to solution in the gradual evolution of the full measure of Dominion autonomy. A. BERRIEDALE KEITH.

Edinburgh.

VOL. XXXVIII. C.L.T.-46

PRACTICE AND PROCEDURE.

One of the subjects in which clearness, precision and certainty would have seemed eminently desirable, is that which concerns matters of practice and procedure. The rules which prescribe how a dispute is to be submitted to the Courts, in order to obtain that justice which the law is instituted to dispense, ought to be of such limpid clarity as to be susceptible of ready application without doubt or fear. No litigant should be compelled to run the risk of having his case obscured, or his rights prejudiced, by becoming involved in the skein of a tangled mass of rules.

There is the advantage, too, in regard to this subject, that the present need not be fettered with the precedents of the past. There is nothing sacrosanct about rules of procedure; they can be amended and repealed and re-enacted whenever and so often as the Rules Committee or other rule-making body sees fit.

Yet it is only necessary to note the bulk and glance through the contents of the Annual Practice to become aware of the pitfalls innumerable which line the path to the Temple of Justice.

Instead of simplicity, there is extreme complexity; instead of clearness, involution and obscurity; instead of certainty, the greatest difficulty in extricating from a mass of conflicting decisions, some indication as to the right course to pursue in even very simple matters. And on every hand, as the bewildered traveller seeks to grope his way through the mazes of the law, he finds himself confronted by the unscalable precipice of "judicial discretion," to be exercised according to the "circumstances of the particular case, which effectually shuts out any hope of steering course through these manifold pitfalls. Instead of

there being a true north to which his compass

a

safe

may

point, he is abandoned to the mercies of the shifting

vane of an arbitrary discretion.

The cases in which there is a doubt as to the correct meaning of the relevant rule are very numerous, but it will perhaps be sufficient to take by way of illustration two matters, one which confronts the practitioner at the commencement, and one at the conclusion of every action: who should be made parties to the action; within what time must an appeal be taken.

The right of appeal is a particularly valuable one in these days, when so much depends on the view which a Court takes of a particular transaction, or of the meaning of a particular set of words whether in a will or contract or other written document. It not infrequently happens that an inference is drawn from a particular set of facts or a construction placed upon a particular collocation of words by a lower Court which is found by a Court of Appeal to be scarcely intelligible, and similarly the views of Appellate Courts not seldom fail to commend themselves to Courts of last resort.

In this welter of conflicting impressions, it is surely desirable that matters of great importance should be discussed before as many Courts as possible, in order that all aspects of the transactions may be considered and exhausted and the true light eventually dawn upon the troubled scene.

Yet it not infrequently happens that a litigant finds his chances of appeal ruthlessly cut off, because his professional advisers have misconstrued the rules governing his right of appeal.

According to the English system and those other, very numerous, systems which follow the English, definite periods of time are allotted within which a notice of appeal must be given, and these periods are different according as the appeal is from a final or interlocutory judgment or order, being much shorter in the case of interlocutory orders than in the case of final ones.

To the uninitiated, it would seem a simple matter to decide whether a particular case falls within the

former or the latter category, but in reality it is a matter of the greatest difficulty to determine what in fact does constitute a final or interlocutory order.

Two divergent principles have at different times. held the field.

In Shubrook v. Tufnell,' an arbitrator, under an order of reference, had stated a case for the opinion of the Court, which provided that, if the opinion of the Court should be one way the case was to be referred back to the arbitrator; if the other way judgment was to be entered for the defendant. A Divisional Court decided in favour of the plaintiffs and referred the case back to the arbitrator. From this order an appeal was taken, and the Court of Appeal held that the order was a final one, on the express ground that a decision was interlocutory only where it could not in any event necessitate the entering of final judgment for either party.

This principle held good for nine years till the case of Salaman v. Warner 2 came before the Court of Appeal.

The order appealed from in this latter case was one dismissing an action made upon the hearing of a point of law, which would certainly be sufficiently final if it should happen to be affirmed.

Shubrook v. Tufnell, however, was not cited, and the Court of Appeal enunciated a new principle, viz., that a final order is one made on such an application or proceeding that, for whichever side the decision is given, it will, if it stands, finally determine the matter in litigation.

The latter principle was, therefore, in direct contradiction of the earlier one, but both had the merit of definiteness and ease in application.

This second principle held the field for twelve years, when the matter again came under the consid

1 (1882) 9 Q. B. D. 621.

2 [1891] 1 Q. B. 734.

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