be the case that commercial cases are, so far, disposed of with reasonable despatch by our Ontario Courts, and to the satisfaction of business men. But with the rapid growth and increasing commercial importance of Toronto and this province, the time must soon come for dealing in a practical way with this question.

The term "Commercial Court" in England refers to "the special arrangements made by the Judges of the Queen's Bench Division in 1895, for the despatch of commercial business in accordance with the existing rules and orders. No new Court was in fact established, the Judges of the Queen's Bench Division merely made arrangements within their own power to make, which they expected would provide adequately for the expeditious and economical disposal of actions properly within the definition of 'commercial causes,' and would thereby restore the confidence of the commercial community in the power of the High Court to satisfactorily settle commercial disputes without unnecessary expense and delay. The result has shewn that their expectation was fully justified." (Eng. Encyc. III., pp. 203-4.)

This was the result of an urgent appeal made by London merchants many years before, who found that it was impossible to obtain in the Courts what business men so much desired a cheap and speedy settlement of mercantile differences, and who have consequently resorted to arbitration in order to avoid recourse to the ordinary tribunals.

"The bulk of the disputes of the commercial world," said an eminent Judge in a letter to The Times (10th August, 1902), "seldom in these modern days, finds its way into the Courts. Merchants are shy of litigation. No solicitor can tell his client beforehand, even with a moderate degree of certainty, what is the limit of costs to which a man may be put, either in prosecuting or in defending his just rights. Two considerations are important to men of business when contemplating the possibilities of litigation. The first is money. 'How much is it likely at most to cost? The second is-time. 'How soon at latest will the thing be over?' They want to close their books at the end. of the current year, to write off bad and hopeless debts, to know upon what lines next year to deal with similar questions should they arise. For such and other reasons of their

own the mercantile public is not fond of law if law can be avoided. They prefer even the hazardous and mysterious chances of arbitration, in which some arbitrator who knows about as much of law as he does of theology by the application of a rough and ready moral consciousness, or upon the affable principle of dividing the victory equally between both sides, decides intricate questions of law and fact with equal ease." Attempts to provide a remedy for these griev ances by legislation did not prove satisfactory. It was in consequence of this that the Judges of the Queen's Bench Division devised the scheme already referred to.

The action is commenced by writ in the usual way, and the ordinary rules of practice apply to it until, and to some extent after, it has been transferred to the commercial list. This is done by application to the commercial Judge for directions. This may be made at any stage of the action, even immediately after the writ is issued and before appearance. Pleadings, under that name, are not in use in the Commercial Court, they are commonly dispensed with where the facts are actually or substantially undisputed. Sometimes the parties may be ordered to deliver "points of claim" and "points of defence," but even these concise statements of the points to be raised may be dispensed with where they seem unnecessary.

"On the first hearing of the application for directions. the Judge usually orders (a) the transfer of the cause to the commercial list; (b) the delivery of points of claim and points of defence: (e) the exchange of lists of documents between the parties, and the mode and date of trial."

In the endeavour to avoid unnecessary expense as to evidence both parties are expected to assist. It has been found possible in practice to secure the consent of the parties to devices for avoiding expense, which are unknown to the other Courts. It is said that it is rarely found to be necessary to issue a commission or to make an order for the examination of a witness abroad or out of the jurisdiction. Special arrangements are made for the taxation of costs in such cases.

"Commercial causes" are defined to "include causes arising out of the ordinary transaction of merchants and traders; amongst others, those relating to the construction. of mercantile documents, export or import of merchandise,

affreightment, insurance, banking and mercantile agency, and mercantile usages."

If the Judge considers that the commercial element is wanting the application will be refused. The mere fact that a case will be tried more cheaply or with greater despatch in the Commercial Court is no reason for transferring it.

Nor will a case be placed in the List if the sole question to be tried is one of figures or account. The Court was not intended for such actions as would ordinarily go to an official referee, and if it becomes clear that there is no question of law to be decided in a particular case, and that the matter must eventually be referred, the application for transfer will not be granted.

In the early days of the Court an idea prevailed that it was intended primarily for the trial of short causes, and that cases which needed a lengthy investigation were not suitable for transfer. An argument of this kind was addressed to the Court of Appear in Baerlein v. Chartered Mercantile Bank (f); but it was laid down by Lindley, L.J., that there was no such limitation of the functions of the Court, and that a case, otherwise suitable for the commercial list, ought to be transferred with the greater readiness if it threatens to be long or tedious. "As to this particular case," he said (g): "I have no hesitation in saying that in my judgment it is exactly one of those which ought to go to the Commercial Court, for this reason: that whether this will be a long case involving a very exhaustive investigation of accounts, or not, depends, to my mind, upon what is done on the summons for directions. If that summons comes before a Judge who is not by training and practice specially able to deal with commercial correspondence and commercial views of business, this case may be a very long one. But, on the other hand, if it comes before a Judge who is thoroughly versed in that particular department of business and of law, it may be a comparatively short one," and Lopes, L.J., said in the same case: "I think the Court was established not only for trying cases that could quickly be disposed of (I do not use the words 'roughly and readily '), but that it was established specially to try all difficult commercial cases-cases which might take

(f) [1895] 2 Chy. 488.

(g) Ib. at p. 493.

a long time to try elsewhere, and cases that require special knowledge for their proper determination.

In many cases no doubt the accounts will be taken by the Judge, thus avoiding the heavy expense and long delay occasioned by a reference to a Referee. This may not always be possible; there may still be a modicum of ground for the exasperation which prompted "the utterance of a former Master in Chancery who differentiated between the functions of Court and Master by saying that all the difficult matters went to the Master and all the easy ones to the Court." (St. Thomas v. Credit Valley, 15 O. R. 685.)

There is no doubt that much of the success of this experiment in England was due to the fact that it was entrusted in the first instance to Mr. Justice Mathew, who "in addition to his reputation as a commercial lawyer was well known for his impatience of all unnecessary technicalities in legal procedure. In shaping the future course of practice in commercial causes, he exercised a free hand with highly beneficial results." (Eng. Encyc. of Law, vol. III.)

It is obvious that so far as the mercantile community is concerned the formation of a commercial Court, either by legislative or judicial action, would remove all complaints both as to delay and expense. But great care would have to be taken in the choice of a Judge, especially in the initial stage of the experiment, when it is important to win the confidence of the commercial class. The Court should be a forum domesticum. It has been found in England that the result of the first application, with its discussion before the Judge and his suggestions and criticisms, often led to a settlement of what should otherwise have been stubbornly contested and costly lawsuits. If the solicitors and counsel were at liberty to do, what unquestionably commercial clients would prefer, stipulate for the amount of their compensation, the unjust charges against the profession would have no ground upon which to rest, so far at any rate as business men are concerned.

Should there be an appeal from the decision of the commercial Judge either as to law or facts?

I would suggest that there should not be.

As far back as 1874 this was said by an eminent London merchant: "Those who support the present system of trying mercantile disputes seem to regard them all as hostile litigation, and lose sight of the fact that in the majority of cases when differences arise between merchants or traders, both parties would rejoice to obtain a prompt settlement by a legal tribunal duly constituted, and to continue their friendly commercial relations. The present system too frequently works a denial of justice, or inflicts on the suitors a long-pending, worrying law suit, the solicitors on either side pleading in their clients' interests every technical point, and thus engendering a bitterness which destroys all future confidence and puts an end to further mercantile dealings. It is essential that the procedure of our mercantile Courts should be of the simplest and most summary character." To allow an appeal would be to defeat the very raison d'etre of the tribunal. It might beside result in having the judgment of one who had become an expert in such matters dealt with by Judges who, however eminent, might not be conversant with commercial matters.

(I have derived much assistance in dealing with this subject from Mr. T. Mathew's book, "The Practice of the Commercial Court.")

COSTS.

The order of precedence in Chancery cases of old was said to be "first practice, next costs, and thirdly the merits of the case." I bring in now, out of proper order, the subject of costs.

AGREEMENT WITH CLIENTS FOR A LUMP SUM.

A prominent politician, himself a lawyer, has lately before a large political gathering made, so it is reported, some striking remarks on law reform. He said he did not see why business man should not be able to engage a lawyer for a lump sum to carry his case to judgment. If this policy were carried out there would be less delay and less appealing." The paragraph containing these remarks is headed: "About Hiring Lawyers." It is not necessary before this audience to vindicate the profession from the covert charge that delays and appeals are caused