[1] This is confirmed by the circumstance that in Judg. ii. 1 the
"angel of Yahweh," who, according to Exod. xiv. 24, xxiii. 20, xxxii.
34, xxxiii. 2, 7 seq., must be viewed as having his local
manifestation at the headquarters of the host of Israel, is still
found at Gilgal and not at Shiloh.
[2] The chapter was written after Israel had become strong enough to
make the Canaanite cities tributary (v. 28), that is, after the
establishment of the monarchy (see 1 Kings ix. 20-21).
[3] Hence, it is to be inferred that the reviser had older _written_
records before him. Had these been in the oral stage he would
scarcely incorporate traditions which did not agree with his views;
at all events they would hardly have been written down by him in the
form in which they have survived. The narratives of the monarchy
which are preserved only in Chronicles, on the other hand, illustrate
the manner in which tradition was reshaped and rewritten under the
influence of a later religious standpoint.
[4] It may be conjectured that the introduction originally formed the
prelude to the rise of Saul: the intervening narratives, though not
necessarily of late origin themselves, having been subsequently
inserted. See S. A. Cook, _Crit. Notes O. T. Hist._, p. 127 seq.
[5] Tola and Puah (x. 1) are clans of Issachar (Gen. xlvi. 13), for
Jair (v. 3), see Num. xxxii. 41, and for Elon (xii. 11), see Gen.
xlvi. 14. See GENEALOGY: _Biblical_.
[6] To the same post-exilic hand may also be ascribed the
introduction of the "minor judges" (so several critics), and smaller
additions here and there (ch. i. 1 opening words, vv. 4, 8 seq.
[contrast 21] 18; viii. 30-32: xi. 2, &c.).
JUDGMENT, in law, a term used to describe (1) the adjudication by a
court of justice upon a controversy submitted to it _inter partes_
(_post litem contestatam_) and determining the rights of the parties and
the relief to be awarded by the court as between them; (2) the formal
document issuing from the court in which that adjudication is
expressed; (3) the opinions of the judges expressed in a review of the
facts and law applicable to the controversy leading up to the
adjudication expressed in the formal document. When the judgment has
been passed and entered and recorded it binds the parties: the
controversy comes to an end (_transit in rem judicatam_), and the person
in whose favour the judgment is entered is entitled to enforce it by the
appropriate method of "execution." There has been much controversy among
lawyers as to the meaning of the expressions "final" and "interlocutory"
as applied to judgments, and as to the distinction between a "judgment,"
a "decree," and an "order." These disputes arise upon the wording of
statutes or rules of court and with reference to the appropriate times
or modes of appeal or of execution.
The judgments of one country are not as a rule directly enforceable in
another country. In Europe, by treaty or arrangement, foreign judgments
are in certain cases and on compliance with certain formalities made
executory in various states. A similar provision is made as between
England, Scotland and Ireland, for the registry and execution in each
country of certain classes of judgments given in the others. But as
regards the rest of the king's dominions and foreign states, a "foreign"
judgment is in England recognized only as constituting a cause of action
which may be sued upon in England. If given by a court of competent
jurisdiction it is treated as creating a legal obligation to pay the sum
adjudged to be due. Summary judgment may be entered in an English action
based on a foreign judgment unless the defendant can show that the
foreign court had not jurisdiction over the parties or the subject
matter of the action, or that there was fraud on the part of the foreign
court or the successful party, or that the foreign proceedings were
contrary to natural justice, e.g. concluded without due notice to the
parties affected. English courts will not enforce foreign judgments as
to foreign criminal or penal or revenue laws.
JUDGMENT DEBTOR, in English law, a person against whom a judgment
ordering him to pay a sum of money has been obtained and remains
unsatisfied. Such a person may be examined as to whether any and what
debts are owing to him, and if the judgment debt is of the necessary
amount he may be made bankrupt if he fails to comply with a bankruptcy
notice served on him by the judgment creditors, or he may be committed
to prison or have a receiving order made against him in a judgment
summons under the Debtors Act 1869.
JUDGMENT SUMMONS, in English law, a summons issued under the Debtors Act
1869, on the application of a creditor who has obtained a judgment for
the payment of a sum of money by instalments or otherwise, where the
order for payment has not been complied with. The judgment summons cites
the defendant to appear personally in court, and be examined on oath as
to the means he has, or has had, since the date of the order or judgment
made against him, to pay the same, and to show cause why he should not
be committed to prison for his default. An order of commitment obtained
in a judgment summons remains in force for a year only, and the extreme
term of imprisonment is six weeks, dating from the time of lodging in
prison. When a debtor has once been imprisoned, although for a period of
less than six weeks, no second order of commitment can be made against
him in respect of the same debt. But if the judgment be for payment by
instalments a power of committal arises on default of payment for each
instalment. If an order of commitment has never been executed, or
becomes inoperative through lapse of time, a fresh commitment may be
made. Imprisonment does not operate as a satisfaction or extinguishment
of a debt, or deprive a person of a right of execution against the land
or goods of the person imprisoned in the same manner as if there had
been no imprisonment.
JUDICATURE ACTS, an important series of English statutes having for
their object the simplification of the system of judicature in its
higher branches. They are the Supreme Court of Judicature Act 1873 (36 &
37 Vict. c. 66) and the Supreme Court of Judicature Act 1875 (38 & 39
Vict. c. 77), with various amending acts, the twelfth of these being in
1899. By the act of 1873 the court of chancery, the court of queen's
(king's) bench, the court of common pleas, the court of exchequer, the
high court of admiralty, the court of probate and the court of divorce
and matrimonial causes were consolidated into one Supreme[1] Court of
Judicature (sec. 3), divided into two permanent divisions, called "the
high court," with (speaking broadly) original jurisdiction, and "the
court of appeal" (sec. 4). The objects of the act were threefold--first,
to reduce the historically independent courts of common law and equity
into one supreme court; secondly, to establish for all divisions of the
court a uniform system of pleading and procedure; and thirdly, to
provide for the enforcement of the same rule of law in those cases where
chancery and common law recognized different rules. It can be seen at
once how bold and revolutionary was this new enactment. By one section
the august king's bench, the common pleas, in which serjeants only had
formerly the right of audience, and the exchequer, which had its origin
in the reign of Henry I., and all their jurisdiction, criminal, legal
and equitable, were vested in the new court. It must be understood,
however, that law and equity were not fused in the sense in which that
phrase has generally been employed. The chancery division still remains
distinct from the common law division, having a certain range of legal
questions under its exclusive control, and possessing to a certain
extent a peculiar machinery of its own for carrying its decrees into
execution. But all actions may now be brought in the high court of
justice, and, subject to such special assignments of business as that
alluded to, may be tried in any division thereof.
There were originally three common law divisions of the High Court
corresponding with the three former courts of common law. But after the
death of Lord Chief Baron Kelly on the 17th of September 1880, and of
Lord Chief Justice Cockburn on the 20th of November 1880, the common
pleas and exchequer divisions were (by order in council, 10th December
1880) consolidated with the king's bench division into one division
under the presidency of the lord chief justice of England, to whom, by
the 25th section of the Judicature Act 1881, all the statutory
jurisdiction of the chief baron and the chief justice of the common
pleas was transferred. The high court, therefore, now consists of the
chancery division, the common law division, under the name of the king's
bench division; and the probate, divorce and admiralty division. To the
king's bench division is also attached, by order of the lord chancellor
(Jan. 1, 1884), the business of the London court of bankruptcy.
For a more detailed account of the composition of the various courts,
see CHANCERY; KING'S BENCH; and PROBATE, DIVORCE AND ADMIRALTY COURT.
The keystone of the structure created by the Judicature Acts was a
strong court of appeal. The House of Lords remained the last court of
appeal, as before the acts, but its judicial functions were virtually
transferred to an appeal committee, consisting of the lord chancellor
and other peers who have held high judicial office, and certain lords of
appeal in ordinary created by the act of 1873 (see APPEAL).
The practice and procedure of the Supreme Court are regulated by rules
made by a committee of judges, to which have been added the president
of the incorporated law society and a practising barrister and one
other person nominated by the lord chancellor. The rules now in force
are those of 1883, with some subsequent amendments. With the
appendices they fill a moderate-sized volume. Complaints are made that
they go into too much detail, and place a burden on the time and
temper of the busy practitioner which he can ill afford to bear. It is
possible that the authors of the rules attempted too much, and it
might have been better to provide a simpler and more elastic code of
procedure. Rules have sometimes been made to meet individual cases of
hardship, and rules of procedure have been piled up from time to time,
sometimes embodying a new experiment, and not always consistent with
former rules.
The most important matter dealt with by the rules is the mode of
pleading. The authors of the Judicature Act had before them two
systems of pleading, both of which were open to criticism. The common
law pleadings (it was said) did not state the facts on which the
pleader relied, but only the legal aspect of the facts or the
inferences from them, while the chancery pleadings were lengthy,
tedious and to a large extent irrelevant and useless. There was some
exaggeration in both statements. In pursuing the fusion of law and
equity which was the dominant legal idea of law reformers of that
period, the framers of the first set of rules devised a system which
they thought would meet the defects of both systems, and be
appropriate for both the common-law and the chancery divisions. In a
normal case, the plaintiff delivered his statement of claim, in which
he was to set forth concisely the facts on which he relied, and the
relief which he asked. The defendant then delivered his statement of
defence, in which he was to say whether he admitted or denied the
plaintiff's facts (every averment not traversed being taken to be
admitted), and any additional facts and legal defences on which he
relied. The plaintiff might then reply, and the defendant rejoin, and
so on until the pleaders had exhausted themselves. This system of
pleading was not a bad one if accompanied by the right of either party
to demur to his opponent's pleading, i.e. to say, "admitting all your
averments of fact to be true, you still have no cause of action," or
"defence" (as the case may be). It may be, however, that the authors
of the new system were too intent on uniformity when they abolished
the common-law pleading, which, shorn of its abuses (as it had been by
the Common Law Procedure Acts), was an admirable instrument for
defining the issue between the parties though unsuited for the more
complicated cases which are tried in chancery, and it might possibly
have been better to try the new system in the first instance in the
chancery division only. It should be added that the rules contain
provisions for actions being tried without pleadings if the defendant
does not require a statement of claim, and for the plaintiff in an
action of debt obtaining immediate judgment unless the defendant gets
leave to defend. In the chancery division there are of course no
pleadings in those matters which by the rules can be disposed of by
summons in chambers instead of by ordinary suit as formerly.
The judges seem to have been dissatisfied with the effect of their
former rules, for in 1883 they issued a fresh set of consolidated
rules, which, with subsequent amendments, are those now in force. By
these rules a further attempt was made to prune the exuberance of
pleading. Concise forms of statement of claim and defence were given
in the appendix for adoption by the pleader. It is true that these
forms do not display a high standard of excellence in draftsmanship,
and it was said that many of them were undoubtedly demurrable, but
that was not of much importance. Demurrers were abolished, and instead
thereof it was provided that any point of law raised by the pleadings
should be disposed of at or after the trial, provided that by consent
or order of the court the same might be set down and disposed of
before the trial (Order xxv. rules 1, 2). This, in the opinion of Lord
Davey in 1902 (_Ency. Brit._, 10th ed., xxx. 146), was a disastrous
change. The right of either party to challenge his opponent _in
limine_, either where the question between them was purely one of law,
or where even the view of the facts taken and alleged by his opponent
did not constitute a cause of action or defence, was a most valuable
one, and tended to the curtailment of both the delay and the expense
of litigation. Any possibility of abuse by frivolous or technical
demurrers (as undoubtedly was formerly the case) had been met by
powers of amendment and the infliction of costs. Many of the most
important questions of law had been decided on demurrer both in common
law and chancery. Lord Davey considered that demurrer was a useful and
satisfactory mode of trying questions in chancery (on bill and
demurrer), and it was frequently adopted in preference to a special
case, which requires the statement of facts to be agreed to by both
parties and was consequently more difficult and expensive. It is
obvious that a rule which makes the normal time for decision of
questions at law the trial or subsequently, and a preliminary decision
the exception, and such exception dependent on the consent of both
parties or an order of the court, is a poor substitute for a demurrer
as of right, and it has proved so in practice. The editors of the
_Yearly Practice_ for 1901 (Muir Mackenzie, Lushington and Fox) said
(p. 272): "Points of law raised by the pleadings are usually disposed
of at the trial or on further consideration after the trial of the
issues of fact," that is to say, after the delay, worry and expense of
a trial of disputed questions of fact which after all may turn out to
be unnecessary. The abolition of demurrers has also (it is believed)
had a prejudicial effect on the standard of legal accuracy and
knowledge required in practitioners. Formerly the pleader had the fear
of a demurrer before him. Nowadays he need not stop to think whether
his cause of action or defence will hold water or not, and anything
which is not obviously frivolous or vexatious will do by way of
pleading for the purpose of the trial and for getting the opposite
party into the box.
Another change was made by the rules of 1883, which was regarded by
some common law lawyers as revolutionary. Formerly every issue of fact
in a common law action, including the amount of damage, had to be
decided by the verdict of a jury. "The effect of the rules of 1883,"
said Lord Lindley, who was a member of the rule committee, "was to
make trial without a jury the normal mode of trial, except where trial
with a jury is ordered under rules 6 or 7a, or may be had without an
order under rule 2" (_Timson_ v. _Wilson_, 38 Ch. D. 72, at p. 76).
The effect of the rules may be thus summarized: (1) In the chancery
division no trial by jury unless ordered by the judge. (2) Generally
the judge may order trial without a jury of any cause or issue, which
before the Judicature Act might have been so tried without consent of
parties, or which involves prolonged investigation of documents or
accounts, or scientific or local investigation. (3) Either party has a
right to a jury in actions of slander, libel, false imprisonment,
malicious prosecution, seduction or breach of promise of marriage,
upon notice without order; (4) or in any other action, by order. (5)
Subject as above, actions are to be tried without a jury unless the
judge, of his own motion, otherwise orders.
Further steps have been taken with a view to simplification of
procedure. By Order xxx. rule 1 (as amended in 1897), a summons,
called a summons for directions, has to be taken out by a plaintiff
immediately after the appearance of the defendant, and upon such
summons an order is to be made respecting pleadings, and a number of
interlocutory proceedings. To make such an order at that early stage
would seem to demand a prescience and intelligent anticipation of
future events which can hardly be expected of a master, or even a
judge in chambers, except in simple cases, involving a single issue of
law or fact which the parties are agreed in presenting to the court.
The effect of the rule is that the plaintiff cannot deliver his
statement of claim, or take any step in the action without the leave
of the judge. In chancery cases the order usually made is that the
plaintiff deliver his statement of claim, and the rest of the summons
stand over, and the practical effect is merely to add a few pounds to
the costs. It may be doubted whether, as applied to the majority of
actions, the rule does not proceed on wrong lines, and whether it
would not be better to leave the parties, who know the exigencies of
their case better even than a judge in chambers, to proceed in their
own way, subject to stringent provisions for immediate payment of the
costs occasioned by unnecessary, vexatious, or dilatory proceedings.
The order does not apply to admiralty cases or to proceedings under
the order next mentioned.
The Supreme Court of Judicature Act (Ireland) 1877 follows the same
lines as the English acts. The pre-existing courts were consolidated
into a supreme court of judicature, consisting of a high court of
justice and a court of appeal. The judicature acts did not affect
Scottish judicature, but the Appellate Jurisdiction Act included the
court of session among the courts from which an appeal lies to the
House of Lords.