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in all the matters of which I have quickly, whilst thou art in the way with been speaking, and which it has from him, lest at any time the adversary deliver time to time drawn over from the Common thee to the judge, and the judge deliver Law, to which those matters originally be thee to the officer, and thou be cast into longed. Then the Courts of Equity would prison. Verily I say unto thee, thou shalt be left to execute their ordinary jurisdic- by no means come out thence till thou tion in matters of account requiring a long hast paid the uttermost farthing.” The course of time, and minute and daily at- latter part of the text is applicable enough tention--casęs calling not for decision, to the proceedings under the English but superintendence,--to the care of in- law, and this scriptural advice to comprofants, idiots, and insolvent estates, and mise ought to be constantly set before the other matters which it would be impossi- eyes of suitors in all our courts with the ble for a Court of Common Law effectually penalty denounced. Our law, however, to take cognizance of.

no sooner adopts the principle by allowing Again, on the same principle of avoid- a party to imparl, than it departs from the ing multiplicity of suits, why, in eject- spirit of it; for it must be observed, that ments, should two processes be requisite the delay of imparlance is admissible, not to give the plaintiff his remedy? As things in the way,” but in the Court, after arnow stand, after a man has succeeded in rest, and when the effect is only to proone action to establish his title to the pos- duce unnecessary loss of time, and fees as session, he must have recourse to another, unnecessary. Here, however, the sound to recover that which he ought to have principles are as obvious as before. Whatobtained by one and the same verdict that ever brings the parties to their senses as established his title—the mesne profits ? | soon as possible, especially by giving each Why could not the same jury settle the a clear view of his chance of success or matter at once? Why is an individual failure, and, above all things, making him driven to maintain two actions for the well acquainted with his adversary's case purpose of obtaining one and the same at the earliest possible moment, will alremedy? Or why should not the jury ways be for the interests of justice, of the that tries the right, also assess the da- parties themselves, and indeed, of all mages? Mr. Tennyson's bill, which was but the practitioners. It is the practiintended to remedy some part of this evil, tioners generally, that determine how is only permissive; it ought to have been the matter shall proceed, and it may compulsory. It is only recommendatory, be imagined that their own interests are and its recommendations are not always not the last attended to. The seeming attended to, because the lawyers, having interest of two parties disposed to be litithe choice, do not think fit to pursue that gious, in many cases appears to be differwhich is the least profitable; they choose ent from the interests of justice, although the two actions, when one would suffice their real interest, if strictly examined, for the interests of justice-for the inter- will not unfrequently be found to be the ests of the plaintiff and defendant—for same. Now, justice is embarrassed by all interests, except those of the practi- the disingenuousness of conflicting para tioners.

ties; justice wants the cases of both to be ii.—Having now considered how the fully and early stated ; but both parties number of needless suits may be diminish- take care to inform each other as little as ed, I proceed to the next head of my possible, and as late as possible, of their inquiry - to ascertain how, after their respective merits. One tells as much of number is reduced as low as possible, and his case as he thinks good for the furthose only brought into Court which ought therance of his claim, and the frustrato be tried, you may best shorten the suits tion of the enemy's—so does the other, brought, by disposing of them in the only as much of his answer as may help shortest time, and with the least expense. him, without aiding his adversary; and And this topic leads me to examine the the judge is oftentimes left to guess at the principles which ought to be adopted for truth in the trick and conflict of the two. encouraging the parties to come to an The interest of the Court of Justice being to amicable settlement as speedily as possi- make both parties come out with the whole ble. The law cites as its warrant for cer- of their case as early as possible, the law tain steps in every suit, the injunction of should never lend itself to their concealScripture - “Agree with thy adversary ments. This remark extends to the proof

189 State of the Courts of Common Law. PEB. 7, 1828.

190 as well as the statement of the case; an are accompanied by irritated feelings * The

** intimation of what the evidence is may earliest opportunity should be afforded in often stop a cause at once. In Scotland, all cases to each party of getting rid of the law in this respect is better than ours, the suit on receiving or making compenfor no man can produce a written instru-sation. I would, therefore, extend the ment on trial without having previously right of paying into Court, or tending shown it to his adversary. For want of amends, to all cases whatever. As the this salutary rule I have often seen the law now stands, it is only magistrates, most useless litigation protracted for the officers, and other persons specially prosole benefit of practitioners. I was my- tected by the statutes of James 1st and self lately engaged in a cause, the cir- George 2nd who can thus proceed in accumstances of which will give the House tions for injury offered to the person or an idea of the mischief. I was instruc property ed not to show a certain receipt to the But the great means of shortening litiopposite party, as my client, the defend- gation are to be found in an enlargement ant, meant to nonsuit his adversary in of our law of arbitrament. I much fear great style, as he would call it. Well, that this, my next proposal, may seem the plaintiff, (an executor), stated his case, strange, especially as coming from a proand called his witnesses to prove the debt. fessional man-for it goes directly to I did not take the trouble to cross-examine, abridge the length and the expense of which would have been quite unnecessary. law proceedings in a great number of Equally so was it to address the jury. I cases, and of preventing not a few from acknowledged the truth of all that had ever coming into Court. But it is calcubeen sworn on the other side, but added lated to secure justice effectually, without that it was all useless, as í happened which no saving of expense or of time des to have a receipt for the money, which serves the name of an improvement. had been paid to the testator. This, of Now, I do not lay claim to any peculiar course, put an end to the case. The disinterestedness in broaching this matsum sought to be recovered did not ex- ter. Few persons, it is true, have less ceed twenty pounds, and the expenses interest in diminishing the amount of could not have been less than a hundred. business in our Courts, because there are If that action had been brought in Scot- not many who gain more by it, and to land, it never could have come to trial, whom, therefore, the abuses which I am nor, indeed, been prosecuted beyond the describing, if such they be, are more promere demand: for, this receipt being fitable. But I really believe that lopping shown, the claim would have been aban- off needless litigation, by measures calcudoned. Here some person or other, Ilated to lessen the expense of procedure will not say who, had an interest in the in all its branches, would greatly increase cause being suffered to proceed, and the the number of lawsuits – real suits, law enabled him to accomplish his object. which ought to be encouraged, as necesI think, Sir, the adoption of some such sary to justice, but which at present are rule as the Scotch might be desirable. At kept out of Court, by the double tax of least, it would be well to inquire how it cost and delay. The County Courts ought acts in Scotland, and be guided by the to be diligently reformed-their process result.

extended to matters of a larger amount, Next, thegreatest encouragement should and of greater variety--their officers renbe given to compromises in all cases. dered more able and effective. This imAt present the law recognises the princi- provement of itself would greatly diminish ple to a certain extent, and permits money to be paid into Court, in some in- * It has been held, that money canstances, as cases of contract and quasi- not be paid into Court in actions for contract, where the damages are certain. breach of contract to deliver goods at But nothing can be less judicious than fixed price, (3 B. and P. 14) for dilapidarestricting the power of paying money tions, (8. 7 R. 47.) on bond for money into Court, to those classes of causes, and in a foreign currency depreciated, (57 R. excluding actions upon contract with un- 87.) Chambers J. in the first and the certain damages, and actions upon tort, strongest of these cases says, It could which are far more likely to be brought not be done without violating every rule of hastily or obstinately defended, because they practice.”- See Com. Pleas, c. io.

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the number of trifling suits brought intonal exists in France, under the name of the higher judicatures; and how can I, Cour de Conciliation ; in Denmark it or any one conversant with the practice of exists; and for certain mercantile causes the law, adequately express the benefits of in Holland also. If it be thought too having a speedy and cheap redress for great a change to introduce it here, in petty wrongs, when we daily witness the what I deem its best form, I think much evils of the opposite system ! How often good would arise from modification of it have I been able to trace bankruptcies ---the appointment of public arbitrators, and insolvencies to some lawsuit about ten who might at all times sit and take referor fifteen pounds, the costs of which have ences by consent, with process to compel mounted up to large sums, and been the the attendance of witnesses, and the exebeginning of embarrassment. Nay, how cution of their awards. At least we should often have we seen men in the situation see all those cases taken before them at described by Dean Swift, who represents once, which are now brought at great cost Gulliver's father as ruined by gaining a into Courts wholly unable to try them, and Chancery suit, with costs! The public are uniformly greeted with the observation generally, are little aware of the number from both bench and bar—“Oh an acof petty actions forming the bulk of every count and a set-off a hundred items cause paper at Nisi Prius. Professional so many issues—no judge or jury can try men can tell how many now stand for trial it,” after all the expense of trying it has concerning demands under twenty pounds; been incurred. * how few of these have been thus far ri- iii.—The course of our inquiry has thus pened by the fostering care of the pro- brought us, in the third place to the comfession and the offices, under a hundred mencement of a suit; and here the prinpounds expense. I made the Prothono- ciples and rules which present themselves tary, four years ago, at Lancaster, give are as obvious as they are important. The me a list of fifty verdicts obtained at the first is to prevent the debtor's escape, and Lent assizes ; the average was under four- hinder him from delaying his creditor, by teen pounds, including, however, two or wilfully absenting himself. The second is three actions brought to try rights, where to give the debtor due notice of the parthe damages were of course nominal. But ticular nature of the claim, so that he may if the money recovered amounted in all defend himself if right, or yield if wrong, to less than nine hundred pounds, the costs that is, if actually indebted. The third is, incurred certainly exceeded five thousand to give the debtor no unnecessary inconpounds: fifty pounds a side being indeed venience, till found to be in the wrong,

very low average of costs as between (that is, indebted), as far as is consistent attorney and client. It is not too much with due security to the plaintiff against a to affirm that not above a tenth part of defendant likely to escape; taking care those fifty cases would ever have seen the also to protect the defendant against a Court at Lancaster had a right system pre- plaintiff likely to oppress him with costs vailed ; that is, if the parties who were to and leave him without remedy on dropping bear the heavy charge, whether of losing the suit. Now, against all these, which or seeming to gain (for the loss, generally I consider cardinal virtues in this importspeaking, only differed in degree) had tant stage of procedure, our laws offend been early apprized of their real situation most grievously; for, in the first place, we and exercised their own judgment upon assume the defendant to be in the wrong, the question of going on or settling be- and not only so, but to be meditating times. An extension and improvement flight from his country and his home ; we of arbitration is one of the remedies I have therefore, arrest him immediately, and cast ventured to suggest, at least for further discussion. If arbitrators were publicly * Out of the Statute of William, Arbiappointed, before whom parties themselves tration is no favourite of our law. An might go in the first instance, state their agreement or a covenant to refer, is waste grounds of contention, and hear the calm paper; no action can be maintained for a opinion of able and judicious men, upon breach of either; and Equity will not entheir own statements, their anger would force the performance. (6 Ves. 818.) А often be cooled, and their confidence great Judge said on this case, that he had abated, so as to do each other justice with since a cause he mentioned, made a rule out any expense or delay. Such a tribu-I to recommend an Arbitration,

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him into prison or compel him to find bail. Yet the law always proceeds on the supA Member of this Honourable House, if, position, that a man will run away the by the acceptance of an office, he happens, moment he has notice given him of an for the space of a few days, to be out of action for the debt. Some men might Parliament, may thus be arrested, and put possibly act thus, but their conduct forms to the most serious inconvenience. It the exception, not the rule; and do you might have happened the other day to the legislate wisely-do you legislate like men member for Oxford. If he bought twenty of sense-do you legislate with common pounds' worth of goods on a Saturday; consistency—when you denounce a penalty went to his villa and returned on Monday, against all men, in order to meet a case not on knocking at his door he might be met likely to occur once in a thousand times ? with an arrest, and he must then accom- What would be the effect of altering the pany the sheriff's officer to a lock-up law in this respect? Could its reformahouse till he procured bail. He would tion injure any one ? Certainly not; on then do what I understand is usual in such the contrary, it would benefit all classes of cases, send for his butcher and his baker, the community. The very first consequence and get bailed; but a gentleman could not, of such an alteration would be to make after that, complain so well of the meat or tradesmen less easy in giving credit, by bread, or the bills during the next half rendering them more cautious. At present, year. Certainly he would not be in a they are induced to rely on the suddenness situation, the week after, to criticise his of personal arrest for compelling a payment tradesman's conduct with a good grace. I of their demands, in preference to others, have known worse inconvenience happen and thus to speculate upon the chance of from such use being made of the law, at payment from insolvent persons ; so they elections; indeed, when candidates have enter into a competition—not an honest, carried their adversary's voters to Norway, praiseworthy competition, in the correctinstead of letting them reach Berwick, we ness of their dealings, or the goodness of may believe they would not scruple to use their wares—but a competition in the the writ for a similar purpose. But how- credit they give to needy and profligate, or ever malicious or spiteful may be the mo- suspected and extravagant men, unable to tives of any one in so employing the pay any thing like the whole amount of process of the law, there being a probable debts, which the rashness or cupidity of cause of detention, and the process not tradesmen may allow them to contract. being abused, no action lies against the And on whom does the loss thus incurred wrong doer. If he bave no accomplices, by the tradesman finally fall ? Not unfreso as to fall within the charge of conspiracy, quently on those who can and do pay; he is safe. To the wealthy, however, all they have to answer for those who do not ; these inconveniences are trivial ; but how they pay a sort of del credere in proportion does such a proceeding operate on a poor to the loss incurred through giving credit man, or a tradesman in moderate circum- -a species of insurance on all bad debts. stances ? He has no facilities for obtain- Even the more respectable customers ing bail; if he does, he pays one way or would be all the more regular in their another afterwards for the favour; and if dealings and economical in their habits, he cannot procure it he must go to prison. were they never tempted by easy credits to Perhaps no man ever holds up his head, buy what they have not money to pay for. or is the same man again, after having My next objection to the present system once been in prison, unless for a political under this head is, that no proceeding offence. But, I ask, why should a man can take place in our courts unless there ever be arrested on mesne process at all? | be an actual appearance. We outlaw a The honourable member for Montrose has man to compel an appearance. Why do so? brought this subject before the House, and Why can we not proceed as in a case of he has my hearty thanks for it. On what ejectment, where a notice is left at the ground of common sense does our law in dwelling-house? Why can we not leave this matter rest? Why should it be sup- a writ at a man's house, stating what we

a posed that a man, owing twenty pounds, sue him for; and only when we think him will leave his house, his wife, his children, about to fly, call upon him to give surety? his country, his pursuits; and incur I repeat, why not send a writ to the known voluntarily the punishment awarded for domicile or house of business of the debtor; great crimes, by banishing himself for life? | a writ, too, which shall plainly describe VOL. XVIII,

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the cause of action, instead of serving him ducted in English. I must own that I with a writ that only tells him he is a approach the subject of Special Pleading, prisoner for some reason or other, wbich in the presence of my most worthy friend in due time he will be informed of; and, and learned instructor in that art, (Sir N.C. if he cannot be found, outlawing him after Tindal,) with some degree of awe. That nine months' delay ? This is done in Hol- excellent person's attainments in its land, a mercantile country, and in Sotland, mysteries are well known, and justly apprea wary country, where too great charity is ciated.

ciated. He is intimately acquainted with not generally shown to the debtor; at the subject. The distrust of my own least the Scotch have not the reputation learning therein, while addressing him, is of being unnecessarily merciful on such not lessened by my recollection of the occasions; yet a writ to take the debtor's praises lavished upon it by high authoriperson is only obtainable there if he be in ties of past times. Lord Coke deemed it meditatione fuga. Our process of out- so delightful a science, that its very name lawry is, in its nature, extremely foolish; was derived, according to him, from its its object being to compel an appearance, pleasurable nature : “Quia bene placitare which, after all, is not necessary, provided omnibus placet.” Incapable of inventing he wilfully absents himself after due a new.pleasure, I would fain restore a lost notice. If a man chooses to keep away, one, by bringing back pleading to somewhy not proceed without him after such a what of its pristine state, when it gave our delay, and so many services at his place of ancestors such exquisite recreation. Cerresidence as shall ensure him having a tain it is, that our deviations from the old knowledge of the action ? As for any rules in this branch of the law has been scruple about proceeding against an absent attended with evil effects. Those rules, as man, without making perfectly sure of his Lord Mansfield once said, were founded in having notice, the present law has no right reason and good sense; accuracy and to say a word on the subject; for its pro- justice were their object, and in the cess of outlawry is neither more nor less details much of ingenuity and subtlety tban a mean by which you harass an was displayed; but by degrees the absent man, without even pretending to good sense has disappeared, and the give him notice. He may be in the Greek ingenuity and subtlety have increased Islands, on the coast of Africa, or in the beyond measure, and been oftentimes back woods of America, and his creditor misdirected; nay, to such a pitch have can outlaw him, and proceed to have his the changes proceeded, that at last subtlety goods forfeited without his being aware has superseded sense; accuracy and justice of the transaction, and without the proceeds are well nigh lost sight of, and ingenuity of the forfeiture necessarily benefiting any is exhausted in devising pretexts for proone but the Crown. In Exchequer cases, lixity and means of stratagem. In these it is true, the debt and costs, not exceed really hurtful innovations the courts of law ing 501. are paid out of the fund arising have been the far too ready accomplices : from selling the goods; in all other cases and the legislature has been a most willing a party must apply to the Lords of the instrument, to increase the evil, by sancTreasury. Why should this be? What tioning, almost as a matter of course, in have the Lords of the Treasury to do with each new act, the power of pleading the the legal remedy of plaintiffs in suits? general issue; so that to call the modern Why send any one to the executive power practice by the name of special pleading is for the redress which the judicial authority an abuse of terms. It can be only alone ought to administer ?

restored to its ancient condition, and made iv.--We are now to suppose the parties deserving, if not of Lord Coke's panegyric, in Court, and called upon to state their yet of the more measured commendations cases, the claim of one, and defence of the of Lord Mansfield, by reviewing the entire other. Anciently this pleading, as it is system as it at present stands. My wish termed, was by word of mouth ; but in is, as far as possible, to revive the accuracy more modern times it has been carried on of the old pleading, without its niceties in writing. Originally, too, pleas were in and verbosity; while pains are taken to French, afterwards in Latin, and, for a improve it where this can safely be done, century past, by a great, but most salutary by adapting it to the advanced state of intovation, doubtless much reviled and modern jurisprudence. dreaded in its day, they have been con- The precedents of the ancient pleaders,

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