A good judge will, when necessary, extend the limits of his jurisdiction. The word “jurisdictionem” should be, according to Lord Mansfield, “ justitiam,” and the meaning of the maxim in such case is, that to be a good judge is to amplify in his office the remedies the law gives, so as, in the most perfect manner, to do the most complete justice, not letting substantial justice be frittered away by nice and unmeaning technicalities, or himself to lay hold of such technicalities as a means of avoiding giving a decision according to very right, in broad and substantial justice. And this he has the power and opportunity to do in all those cases which, by the common law, the practice of his court, and by legislative enactment, are left to his discretion — meaning by discretion the exercise of a sound judgment upon the facts, or, as it is stated by Lord Mansfield to be : sound discretion guided by law, governed by rule, not humor ; not arbitrary, vague, and fanciful, but legal and regular ; according to the maxim, “Discretio est discerne per legem quid sit justum.” But the maxim does not mean that a good judge will exceed the limits of his jurisdiction, or that he will do anything other than that which by the law and practice of his court he is authorised to do.
Recent legislation has greatly extended the jurisdiction of the judges of the superior courts of common law, by giving them power to amend at all times all defects and errors in any proceeding in civil causes, and whether there be anything in writing to amend by or not, and whether the defect or error be that of the party applying to amend or not, and upon such terms as to them shall seem fit ; and all such other amendments as may be necessary for determining, in the then existing suit, the real question in controversy between the parties. And the proper exercise of the power thus given is an application of the maxim under consideration. With this maxim should be considered the following : - Bonus judex secundum sequum et bonum judicat, et asquitatem stricto juri praefert “ — A good judge judges according to equity and right, and prefers equity to strict law ; and which equity so considered is the construction which judges put upon the letter of the law in the decision of cases within the mischief, yet not within the letter, that there may be no failure of justice, inasmuch as it is impossible that the Legislature should foresee and set down in express terms every evil to do provided against.
The practice of courts of equity, and the principles governing the decisions of the judges of those courts, are apt instances of the amplification thereby of the remedies given by the law ; and so is the manner in which justice is administered in those courts, The recent application of equitable to strict legal proceedings, as the permitting equitable pleas, &c, and the liberal manner in which that equitable jurisdiction is applied by the common law judges to strict legal proceedings, is another instance of the application of the maxim. So also are the equitable powers given to the judges of the county courts, and the free and independent manner in which they in equity administer the law, further instances. The maxim is also as well applied in preventing evil as in amplifying the remedies given ; instances of which are the discountenancing petty and vexatious suits, the refusal of applications for unnecessary amendments of proceedings, adjournment of hearings, postponements of trials, references to arbitration, new trials, etc, all of which are fruitful sources of unnecessary and vexatious costs and litigation.
Chan. Prac. 329 ; Co. Litt. 24 ; Ld. Raym. 956 ; Rex r. Phillips, 1 Burr. 304; Hoses v. Macfarlane, 2 Burr. 1012; 4 Burr. 2238; Russell r. Smyth, DM, &W. 818; Clement i. Weaver, 4 Scott N. R. 229; Copley v. Day, 4 Taunt. 702 ; Evans r. Roes, 12 Ad. & El. 1C7 ; Collins v. Aron, 4 Bing. X. C. 233 ; Taylor r. Shaw, 21 L. T. H8 ; Freeman v. Tranah, 12 C. B 411 ■ C. L. P. A. ls:.2.