Journal of the House of Lords: Volume 62, 1830. Originally published by His Majesty's Stationery Office, London.
This free content was digitised by double rekeying. All rights reserved.
Appendix 5 to the evidence of Sir Edward Hyde East Bart M.P.
The Mode in which the Barrister-Judge and Magistrate should proceed in his Court (fn. 1) may be to this Effect on the Civil Side.
The Basis laid in optional Arbitration.
The Hindoos being peculiarly desirous of Arbitration (fn. 2), (which is noticed in Sullivan's Tracts and other Works, and is confirmed by my own Experience,) his Jurisdiction should be bottomed in that Mode of proceeding.
Time of sitting.
He should sit not less than Three Times every Week in his Civil Court, and every Day, if required by the superior Court of the District, during his Magisterial Rotation. On such Sitting Days the other Assistant Officer of the District, as before described, should exercise the Police Functions, in which he should at all Times have co-ordinate Authority with the Barrister-Judge and Magistrate, and which the latter would also exercise on other Days or Occasions than when employed in his Civil Capacity.
Proceeding by Petition in Writing and Summons in Civil Cases. Process, &c.
The Barrister-Judge and Magistrate, on Complaint in Writing made in the Form of a Petition, unshackled by any technical Rules, should have Power to summon any Person residing within his District. He should have Power also to appoint Sub-commissioners, Natives, for distant Villages within his District, (or if the Village Police and Court of Arbitration be revived, the Village Arbitrators should be ex officio his Sub-commissioners,) for aiding the Parties or the Peons of his Establishment in serving Process and Subpœnas, or, in Cases of Necessity, for taking Depositions, after Notice to both Parties to attend, and for executing Judgment.
Village Arbitrators or other Civil Sub-commissioners in each Village.
If the Village Court of Arbitration be revived, the Complainant should have the Option of applying for Redress to that Village Court wherein the Defendant was resident, which should proceed thereupon in (fn. 3) or otherwise to the Civil Sub-commissioner in each Village; unless, upon sufficient Cause shewn by Petition to the Barrister-Judge and Magistrate's Court, without wilful Delay, and before Judgment, he should direct the Removal of the Cause before himself. But no Cause should be removed from the Village Court or Civil Sub-commissioner after Judgment, without plain and manifest Injustice shewn in Abuse of Power and Public Trust, and this without Delay.
Complaint before Barrister-Magistrate,
The Complainant should appear before the Barrister-Judge and Magistrate, or give a satisfactory Reason to him by a known Agent, why he could not appear in Person; which Agent, if accepted by the Court, should have Power to bind him in all respects; but the Barrister-Judge and Magistrate should at any Time have Power to stay or dismiss the Complaint, if the Plaintiff himself, when required, does not attend to answer.
and ore tenus;
The Plaintiff or his Agent should deliver in a short Statement in Writing of the Cause of Complaint, and should also submit himself to the Examination of the Barrister-Judge and Magistrate, ore tenus, on Oath, in open Court, as to the true Grounds of his Complaint, in order that the Barrister-Judge and Magistrate may ascertain the Accuracy of the written Statement, and the probable Grounds of it, taking a Minute of the Examination, to be preserved.
Fees of Court.
When the Nature and Amount of the Complaint shall have been thus understood and recognized, the Complainant shall pay to the Barrister-Judge and Magistrate a certain small Per-centage (fn. 4) upon such Amount, before any further Proceedings are had, if such present Payment be not dispensed with by the Barrister-Judge and Magistrate, for special Cause assigned by him in Writing on the said Petition, and declaratory of his future Purpose, if any, in that respect. Where the Dispute concerns Land, a different though still moderate Rate should be paid, according to the Computation and Practice of the Mofussil Courts on other similar Occasions, so that the same should not exceed; and another Rate should also be settled where the Complaint is founded in Tort and Damages; which latter perhaps may be left to the Assessment of the Plaintiff himself, in restraint of his own Damages; and if they be substantiated, the Defendant may be made to contribute something more, or a certain Portion may be retained out of the Plaintiff's Damages (fn. 5). The requiring something reasonable to be paid by the Complainant in the first Instance is of great Use in repressing frivolous and vexatious Complaints, without impeding the Course of Justice.
It will be for the Government to consider whether any and what Revenue shall be collected from Legal Proceedings, and in what Mode; but it seems reasonable at least that the Suitors should contribute to the just Expences of the Judicial Establishment formed for their Benefit.
It might be useful to have a certain Officer, such as the sworn Interpreter of the Court, if any, or the Registrar, according to the present Constitution of the Zillah Court, one well versed in the Native Tongue, who for a small Fee (say One Rupee) would draw out Petitions, if the Complainant did not procure his own to be drawn up by any other.
Petitions to be entered in a Book.
Upon the Presentment of every Petition, the Cause should be entered in a Book, to be kept in open Court, in the Order of Time in which it was presented, and refer to the like Number indorsed on the Petition, which is to be preserved; for this a small Fee should be paid to the Person making the Entry. Every Case should be called on in the Order in which it is set down, unless upon Cause shewn in open Court the Barrister-Judge and Magistrate thinks proper to postpone or accelerate the Hearing of any particular Petition.
On Rejection, Half the Deposit to be returned.
Rejected Petition, &c. may be referred back to Barrister-Magistrate.
If the Barrister-Judge and Magistrate, after reading the Petition and examining the Complainant ore tenus to any Points which might seem material to him, saw reasonable Ground for granting a Summons against the Defendant, it would be granted accordingly; and if the Matter of Complaint were fairly only doubtful, he should be required and commanded so to do. If the Complaint were rejected, he should instanter return Half the Deposit Money to the Complainant, to whom it should be competent to demand back his Petition, or a Copy of it, and to receive with it a Copy of the Notes of his Examination, taken by the Barrister-Judge and Magistrate, (for which One Rupee should be paid by him to the copying Clerk, unless the Barrister-Judge and Magistrate shall order more to be paid on account of extraordinary Length,) for the Purpose of presenting the same to the superior or Circuit Court of the District, in order that such Court may, if it think fit, direct the Barrister-Judge and Magistrate to receive and proceed upon such Petition.
Upon the granting of any Summons, a certain small Fee, in proportion to the Distance at which the Summons is to be served, should be settled and indorsed upon the Summons by the BarristerJudge and Magistrate, not exceeding per Coss, for the Benefit of the Officer serving the same; and the Summons, made returnable within a Week or Fortnight, or more, according to Distance and other Circumstances of mutual Accommodation, should be served by a Peon of the Court, if near, or, if at a Distance, by a Sub-commissioner of the Village District, as the Judge and Magistrate should order.
Process to compel Appearance.
Or Examination ex-parte.
Judgment and Execution.
If the Defendant did not appear to the Summons, nor authenticate before the Barrister-Judge and Magistrate any satisfactory Reason why he did not, a Capias should issue, as it might do in the first Instance, on special Cause shewn to the Satisfaction of the Barrister-Judge and Magistrate, and his Order thereon; and if the Party absconded, or resisted the Process, so that he could not be taken at the Return Day, an Alias capias should issue, which should be proclaimed in the Town or Village at or nearest to his usual or last known Residence; and if he still absconded or resisted, his Real and Personal Property should be seized and kept in pledge to answer the Plaintiff's Demand (all prior Liens on it being preferred;) which Demand or Claim the Barrister-Judge and Magistrate should then proceed to examine ex-parte, admitting the Defendant nevertheless to come in pending the Inquiry, on giving Bail or Security; and if the Demand were found to be just, he should award Execution or Damages, payable out of the Security given or Property so seized, as far as it extended to cover the Debt or Damages; restoring the Overplus, if any, to the Party or his Representatives, when demanded in open Court; and if it were not sufficient, then proceeding against the Bail, if any, and keeping the Judgment in force against the Debtor's Person or other Property 'till the whole Demand should be satisfied.
Proceeding on Appearance.
Pleading ore tenus to issue.
If the Defendant appeared, he should be examined ore tenus, on Oath, by the Barrister-Judge and Magistrate, as to the Subject Matter of the Complaint, except so far that he should not be bound to criminate himself penally by his Answer; and the full Substance of his Answers relative to the Questions put should be taken down by the Judge and Magistrate, as should also his Refusal to answer any certain Question as it might tend to criminate himself, so that the Judge and Magistrate might exactly understand what were the Points of Difference between the litigant Parties; and having ascertained those Points to the best of his Judgment, he should instanter, in the Presence of the Parties, write them down, and read them over to the Parties (fn. 6), desiring to know from them whether he understood the Points of Difference correctly as they severally meant to represent them, and whether there was any other Matter of Difference between them than those noted down; and should conclude his written Statement of the Issues accordingly, or correct it, until it appeared to be complete.
Question of Reference to Arbitration. To Arbitrator of the Parties Choice.
Time given and extended.
Return of Award made to the Court, and registered.
Grounds and Time for impeaching it.
It should next be inquired of the Parties, whether it was their mutual Desire to refer such Points of Difference, if of Fact, to Arbitration, or to the ordinary Course of Justice in Court. If to Arbitration, then whether they could agree upon some one Arbitrator of their own choosing; (for more than One private Arbitrator should never be accepted if possible to be avoided;) if so, then the Judge and Magistrate should refer such Points of Difference so written down to the Arbitrator agreed on, who should make his Award thereon in Writing within such Time as should be originally allowed, or subsequently extended by the Judge and Magistrate, toties quoties, unless sufficient Cause were shewn against it by either of the Parties; and the Award, when made, should be returned to the Barrister-Judge and Magistrate; and unless sufficient Ground were laid before him, within One Month at most, for impeaching its Justice, on the Ground of Corruption or wilful Misconduct of the Arbitrator, or plain and manifest Mistake apparent upon the Face of the Award itself, either in Conclusion of Law or Fact, such Award should be conclusive between the Parties, and should be preserved in the Registry of the Court.
On Failure of Reference, another, &c.
If the Reference failed, from the Defect of the Award itself, or from the Death of the Arbitrator, or his Neglect or Refusal to proceed, before its Conclusion, or the like, another Reference should be made by the Barrister-Judge and Magistrate, on Application of either Party, and so toties quoties, unless the Judge should see Cause to order otherwise.
Issue of Law.
If the Difference between the Parties were only on Matter of Law, or in part on Matter of Law, reserved at first, or appearing in conclusion, then the Barrister-Judge and Magistrate should himself decide the Point, and award accordingly, or correct the Award made by another, in respect of any erroneous Legal Conclusion appearing upon the Face of it. (fn. 7) And if his Decision were objected to by a Note in Writing delivered into Court within Three Days, the Judge and Magistrate should, at the Expence of the Party objecting, state such Point and Objection to the Judges of Circuit or superior Court, who should with due Expedition return their Answer, if of English Law, upon their own Judgment simply, if of Hindoo or Mussulman Law, then upon their Judgment formed after advising (if the Point be not sufficiently plain) with the Pundit or Moolvy respectively of their Court; and upon such Answer received the Barrister-Judge and Magistrate should declare the same in open Court on a given Day, after prior Notice in Court for that Purpose, to enable the Parties or their Agents to attend.
When Parties cannot agree on an Arbitrator, Reference to Village Court or Sub-commissioner, or Trial before Barrister-Judge and Magistrate.
Court Fees, where Trial before Barrister-Judge and Magistrate.
Jurisdiction in ordinary of 8.000 Rupees.
If the litigant Parties should not agree upon an Arbitrator of their own, the Barrister-Judge and Magistrate should refer the Matters in issue (to the Village Court of Arbitration, if that be revived, or otherwise) to his Sub-commissioner in the Village District where the Dispute had arisen; or if he were objected to, for special and just Reason assigned, then to the adjoining Village Court or Sub-commissioner; or if any Village Court or Arbitrator were objected to for just Cause assigned, and if both Parties required that the Trial should be had before the Barrister-Judge and Magistrate, or they cannot both agree by whom else it shall be tried, just Cause having been shewn by one of them in open Court why it should not be tried by any Village Arbitrator or Court at or near the Place where the Dispute arises, then, upon the Payment or approved Security given by each Party (if both agree) of (say from 3 to 5 per Cent.) upon the Amount of the Property, Debt or Damage in dispute, or upon the Payment or approved Security given of (say 5 per Cent.) upon the same by the Complainant (fn. 8), the Whole or any Part of which may be afterwards adjudged to be repaid by the Defendant in the Costs, should the Plaintiff succeed, and the Court so think fit, which Sum should be received by the Barrister-Judge and Magistrate as a Fee of Court, the Trial should be had before himself in the ordinary Course, provided the Value or Damages in dispute should not exceed (say 8.000 Rupees.) The Costs should be in his Discretion.
Jurisdiction of Superior Courts beyond 8.000 Rupees.
Proceedings below to be sent to superior Courts.
But if the Value or Damages in dispute should exceed (say 8.000 Rupees,) then, unless all the Parties concerned should agree upon the Nomination of an Arbitrator, who should accept the Reference, or unless the Complainant should desire Leave to withdraw his Complaint, the Barrister-Judge and Magistrate should certify the Petition, with all his Notes in Writing relative to the same, to the superior Court, as the Foundation of Process to be afterwards issued on the Complaint there of the Party, according to the Forms of proceeding in such Court, there to be dealt with according to Law and Right.