THE UNIFICATION OF BRITISH COMMERCIAL LAW. The project of unifying the whole laws of an empire is one which has had a fascination for rulers and purists from the very early times. At first sight the idea may appear comparatively simple, only needing laborious work for its execution; and certainly in the case of an absolute monarchy that is all that is needed to carry out a scheme of imperial codification. Hence the success of Justinian's Institutes of the Roman law, and, though the illustration is not so complete, Napoleon's code. The oft cited parallel between the Roman and British Empires has frequently brought with it the question of imperial legislation. No one has yet been bold enough to outline a plan for consolidating all the laws of all the different parts of the empire, yet we find that Chambers of Commerce have often advocated the unification of Commercial law throughout the British Empire. But the promoters of such schemes underrate the difficulties of enacting, say in the Mother Parliament (through the medium of which we presume codification would take place), laws which should operate outside the United Kingdom, and especially within the self-governing dominions, Parliament does not, as a rule, legislate for matters within the powers of a local legislature, and would not even attempt to pass a law operating within any of the selfgoverning dominions except with the clear approval of every dominion concerned. In the case of a law, (even a solitary measure) intended to operate generally throughout the empire, or throughout any important parts of the empire, there would be the preliminary difficulty of obtaining approval of the draft. This would mean protracted negotiation and then there would be the further diffculty of persuading Parliament to abstain from amending a law submitted for enactment. Notwithstanding these obvious objections, and the fact that no deliberate attempt at unification has yet been made, it is surprising how, in the absence of any design toward that end, the laws of the various legislatures within the empire do bear a resemblance, both in principle and structure: Sir John Macdonell in an introduction to a compilation of the enactments of the British dominions made in 1908, dealt with this point as follows: "The history which the various statute books summarized in these volumes record seems to be everywhere similar. With much diversity in detail in this mass of legislation, it is surprisingly homogeneous; it has the same aims; it generally adopts the same means. Almost all the legislatures are making similar experiments, all making similar the form of legislation is being standardized. I may add that the same ethical level is being adopted There is also much conscious and direct imitation of English models Any important measure which has been enacted in one part of the empire is pretty sure to be enacted sooner or later in another." resolutions A very striking proof of the truth of these observations is to be found in the English Sale of Goods Act passed in 1893, which, in its main features, has been very widely adopted not only throughout the empire but in the United States; and the position which that statute has now attained is shown by the remarks of Lord Parker in the case of The Parchim.1 "It (The Sale of Goods Act, 1893) embodies the principle that the question whether a contract for the sale of goods. does or does not pass the general property in the goods contracted to be sold must, in all cases, be determined by the intention of the parties to the contract. The Act codifies the rules by which the intention is to be ascertained, but the inferences based on the rules may always be displaced by the terms of the contract itself or the surrounding circumstances, including the conduct of the parties. No doubt the municipal law with reference to which the parties enter into the (1) 1918 A. C. 161. particular transaction is material in considering their intention as to the passing of the property; and if it appears that they contracted with reference to a municipal law other than English, and it be further proved that the municipal law is different in any material respect from the English law, this will of course be taken into account in determining their intention. But having regard to the presumption that unless the contrary be proved, the general law of a foreign country is the same as the English law, the mere fact that the contract was entered into with reference to the law of another country will be immaterial." that the proved successful draftsmanship of the English Sale of Goods Act, and the satisfactory way in which it has stood the test of judicial interpretation might provide a starting point for introducing the system experimentally into the empire, and were it found workable and acceptable to the constituent legislatures, then it might be followed by the enactment of similar model acts dealing with such subjects as partnership, bills of exchange and those other branches of law in which owing to the necessities of commerce there is the more need of uniformity. Glasgow, Scotland. DONALD MACKAY. EXPEDITING LITIGATION IN THE In a timely and interesting contribution of W. M. Cain in 90 Central Law Journal 33, on "The Law's Delays and Some Proposed Remedies," he refers to the State of Washington as being foremost in expediting litigation, thus: "As nearly as I can learn, the states considered, having the greatest expedition in litigation are Washington, Minnesota, Michigan, Wisconsin and Kansas, in the order named." ing practiced law here from territorial days and having virtually seen the genesis and development of our legal system, it naturally affords gratification to know that this state has has apparently broken the shackles of the law's delay. That others may see how this was accomplished is the purpose of this article. Hav The wide success thus attending the operation of the Sale of Goods Act, suggests some points which, though falling short of any scheme of codification, yet are in that direction, and might be practically beneficial in a high degree. The suggestion for the first of these we take from the report of the committee on machinery of government appointed by the Ministry of Reconstruction, that "in the sphere of civil government the duty of investigation and thought as preliminary to action might with great advantage be more definitely recognized." Following out that idea then, our proposal would be that some common authority or medium be set up which when a law was under consideration by a country could be applied to, and could issue an authoritative report as to how the law stood on the subject in other countries, thus bringing to a focus the experience of the whole empire with regard to that particular matter. In the second place, we think the practice of the United States might with advantage be considered by our legislators, that is the issue of a uniform or model statute which could be adopted by the various legislatures. Thus in the United States the Uniform Sales Act 1906 has been adopted in 19 out of 53 American states and territories. Such procedure is by no means unknown here, for in the Rail-prisonment not to exceed 30 days. An apway Clauses Act and in Table A of the Companies Act we have prominent instances of this system, and it appears to us First: A multiplicity of courts affords. opportunity for delay. In this State, we have the simplest system possible: Justice Courts, Superior Courts and a Supreme Court. A Justice Court has jurisdiction within the county up to $100.00, and of im peal to the Superior Court may be prosecuted where the judgment is over $20.00, within 20 days, and in criminal cases, with in 10 days. In Seattle we have five Justice Courts; one of them attends to the municipal criminal business by direction of the city council. Cases are usually disposed of within thirty days after filing of a complaint. These Courts are invariably up to date with their business and well conducted. A woman successfully presides in one of these courts. The legislature1 has provided for a small claims department, where demands under $20.00 are informally adjudicated by the justice, and that no attorney or person other than the plaintiff or defendant may concern himself in such litigation without the consent of such justice. Second: The Superior Courts have general jurisdiction throughout the state. Each county is provided with one court with one or more judges. Some counties having a small amount of business are comprised in a judicial district served by one judge, and if he should have a rush of cases the Governor may relieve him by designating some judge to help out. In King County, including the City of Seattle, there are nine Superior Court Judges, elected for a fouryear term at the same time, receiving a salary of $4,000.00, which will be increased to $5,000.00 after January 1, 1921. The courts are open for business on every judicial day; that is, there are no terms of court. Of course, where several counties are served by one judge, he would hold court at certain times. By custom, the judges have two months' vacation, usually July and August. During these months contested cases may not be forced to trial. One judge, however, opens court daily in Seattle during vacation to attend to ex parte and emergency business, and such cases. as the parties may voluntarily submit for trial. Often other judges hear causes during vacation when the attorneys agree upon a hearing. The rules of court provide for a presiding judge, who serves for a term of six months. Ex parte business, applications for continuance, probate and divorce matters, if uncontested, are heard by him. The presiding judge on Saturday morning calls the list of cases noted for trial and designates a certain number of cases for trial on a definite day beginning with the second week; he daily assigns cases for trial to the other judges in rotation as any judge has finished the business before him. In this way it is impossible for any person to know in advance what judge will preside in a case, and the judges are all occupied as long as there are cases on the day's calendar. The statute provides for a change of trial to another judge, without assigning a reason except that the party believes the judge to be prejudiced. Applications for such change are unusual. This system keeps every judge at work and has given satisfaction. An action is commenced by summons signed by the attorney, requiring the defendant to appear and answer in twenty days. Then a motion or demurrer may be filed and finally an answer. During the past three years, suppose a suit was brought in the first part of January, it could have been tried by the last of February; then appealed to the Supreme Court, and argued in the month of May, and decided in June. Thus a case would be fully disposed of within six months. Motions and demurrers are heard on each Saturday, except during July and August, unless by consent. A motion or demurrer to be heard should be noted on or before Tuesday of each week for hearing on the Saturday, following, and is assigned by the clerk of the court to one of the eight judges in rotation. A judge who settles the pleadings may not preside at the trial of the case, for it may not be assigned to him. If a party desires a jury trial he may serve notice demanding a jury and deposit. $12.00, which is taxed as costs in favor of the prevailing party. If no jury be demanded it is waived, except in criminal cases, where the defendant is entitled to a jury. Most civil cases are heard before the judge, and lawyers often remark that they would rather have a judge pass on the facts than a jury, even in a damage suit against a corporation. In fact, since the City of Seattle has acquired the street car system, it is the city as a defendant that usually demands a jury trial in personal injury cases. The law provides for the appointment of a court commissioner. Where several counties are served by one judge, a court commissioner is appointed for each county who may attend to business usually done by a judge at chambers. In Seattle the practice of appointing a court commissioner has been discontinued, for his decisions of law or fact were subject to review by a regular judge and was not advantageous. Litigation is apparently increasing. The presiding judge assigns about 60 cases for the trial docket each week, to be disposed of by eight judges. There are now 571 cases ready for assignment or what amounts to the same thing, the trial calendar is ten weeks in arrears. The only remedy is to provide for more judges as business increases. It is wise economy to have enough judges to dispose of litigation promptly. Considering the size of the city and its commercial importance, there should be twelve Superior Court Judges in Seattle, and they would be able to keep the trial calendar free from congestion for several years. Another method to expedite the trial of a case may be adopted by litigants agreeing that some attorney, approved by the court, preside as judge pro tem. He, pro hac vice, has all the powers of a judge to hear and determine the cause and may sign any order or judgment in the trial of the case. He is allowed $10.00 a day while engaged in the trial, which is paid out of public funds. Third: The Supreme Court is composed of nine judges elected for a six-year term, at a salary of $6,000.00 each, but this has been increased by statute to $7,000.00 from January 1, 1921. There are two departments, that is, only one department is in session at a time. Three out of five judges may therefore, decide a case, but in such event a petition for hearing en banc may be filed and the Chief Justice with any two associate judges may order a hearing before the full bench; or any four judges may either before or after a decision by a department, order a cause to be heard en banc. In this way there is no probability that the two departments will conflict in their decisions. While the court is divided into two departments, in fact and legally, there is only one court of nine judges, while for all practical purposes the chief justice with four associate judges constitute a court. The departments alternate in sitting every other week until the calendar is disposed of. For convenience there are terms of court, commencing on the second Monday of January, May and October. The clerk assigns six cases a day for hearing. While one department is hearing argument, the other four judges are at work preparing decisions. During session of the court motions and ex parte applications are heard on Fridays. At other times on the last Friday of the month, except in July and August. One-half hour is allowed each side for oral argument in the Supreme Court. In extraordinary cases additional time may be allowed. The court has kept its work well up to date. Occasionally a case is held for some time under advisement, but usually a decision may be expected within sixty days after argument. Washington became a State in November, 1889, when there were three volumes of reports. Since that time 106 volumes have been published. This shows that the court has determined a large amount of litigation which, as will appear from a casual inspection, was of a greatly diversified character. Since territorial days all the judges have been elected by popular vote. By statute the nomination and election is non-partisan. Everything considered, this State has had a satisfactory judiciary. In former days. there were some promotions to the bench that proved unwise, but gradually the people recognized the importance of selecting men to judicial office of proper qualifications and unquestioned integrity, and upon several occasions unworthy aspirants were decisively defeated. Whenever the bar has taken a determined stand against a candidate, because of personal unfitness, he has usually been eliminated by the voters. Appeals to the Supreme Court may only be prosecuted from a final judgment, within 90 days, except in cases where a receivership, attachment, or injunction be involved. If a demurrer be sustained there. is no appeal until the cause is dismissed or some final judgment entered which brings up for review any order before or after judgment. An appeal from an order not finally disposing of the case must be taken within 15 days. Appellant must serve his brief within 90 days after notice of appeal, and respondent has 30 days to an swer. To assert that our court practice and procedure are the best that can be devised would be absurd. There is opportunity for improvement. Occasionally a case arises where delays result beyond a reasonable time, because of the terms of court or that the judge holds the case under advisement, but these are often more the fault of counsel or the judge than of the law itself. Generally speaking, however, our system is expeditious, simple and inexpensive. The judges are diligent, and as a rule honestly try to solve questions of fact. and law to the end that justice may be done. There is rarely a complaint, except, of course, the defeated party suspects partiality or some sinister influence to have caused his undoing. It is perhaps impossible to devise a human tribunal that will seem infallible, wise and just to defeated litigants. Trumbull states it briefly: YOUNG, J. The defendants asked the court to charge that if the plaintiff knew, when he took this note, that the company had not complied with Laws 1913, c. 187, § 1, he could not recover. Although section 3 of this act provides in substance that the failure to comply with the provisions of section 1 shall not affect the validity of a contract a corporation makes, it also provides that the corporation shall not maintain an action on the contract in the courts of this state, until it has complied with the provisions of that section. The company, therefore, cannot maintain an action on this note in the courts of this state, even if the note is valid, for it has not complied with the provisions of section 1. An indorsee for value before maturity does not stand in any better position than the payee, in so far as defenses of which he had notice are concerned. By notice is intended either "actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith." Laws 1909, c. 123, § 56. It can be found that one who knew of facts that would have put the ordinary man on in. |