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in which it appears either to meet or to fall short of the exigencies of the present time.
Somewhat more than twenty years has now elapsed since commissions with a similar object were issued. Under those commissions many most valuable changes were introduced into the practice of the superior courts. Facilities were afforded for proceedings which were most essential to the due administration of justice between party and party. A code regulating the course of pleading, known as the "New Rules," was promulgated,framed by persons of undoubted ability and great practice, with the intention of simplifying and rendering clear the questions submitted for decision in a cause. But its good effects were considerably marred by the mode in which those alterations were carried into practice. The courts have certainly not enforced these rules in the spirit in which they were intended to operate, and the consequence has been, that the whole system has suffered a stigma, not altogether unmerited, the extent of which has, however, been a good deal exaggerated. The whole course of proceeding has been attacked from without as radically vicious. All possibility of advantageous remodelling has been denied, and a totally novel system is demanded.
It was with the object of removing these complaints, just to a great degree, that the present Commissioners have undertaken their labours; and with the view of obtaining the opinions and judgment of members of both branches of the profession to aid them in arriving at their conclusions, they, in the latter part of last year, circulated extensively certain suggestions of alterations proposed to be made by them. In answer to these suggestions, they received numerous communications, containing hints, of which they have no doubt availed themselves in the results which we find here stated. They also examined several of the officers connected with the different courts in Westminster Hall, or engaged in carrying on the business of nisi prius and at the judges' chambers. Information of a very valuable kind, bearing especially upon one branch of the inquiry, the subject of fees, will be found in the evidence published in the appendix to the Report.
The Report commences with the first step in an action, that of bringing the party sued before the court where the action is to be carried on. This proceeding is the writ, which has been for some years of one uniform kind, the object of it being to compel the appearance of the party sued, or at least to ensure his being made aware of the existence of a suit against him, and of enabling him to appear to it if he chooses. At present the form of action is required to be inserted in the writ; but this requirement does
not answer the end of informing the party sued of the real nature of the complaint against him, and it is therefore recommended that it should be no longer necessary. If a defendant has notice that a suit is instituted against him, it is sufficient. The nature of the plaintiff's claim is at this stage of the proceeding quite immaterial. The writ is issued by the party suing, and is served by delivering it to the party sued. At present the writ issues into the county of the residence, or supposed residence, of the defendant, and must be there served. If the defendant's place of abode is mistaken, or if two defendants sued together reside in different places, it is necessary to sue out a second writ. In order to facilitate this operation as much as possible, it is now suggested that any number of concurrent writs may be issued at once by a plaintiff, and that every writ may be served in any place within the jurisdiction of the court.
A writ of summons continues in force for four months, at the end of which time the plaintiff, if he has been unable to effect service of it, may sue out further writs, called alias or pluries writs, at any time after the expiration of the first writ. If, however, the object of issuing the first writ be to prevent a bar by the Statute of Limitations, it is necessary to issue the renewed writ within one calendar month after the expiration of the first writ, the date of the issuing and return of which must be stated upon the renewed writ. To obviate difficulties arising from the want of uniformity of practice in this respect, it is now proposed
"That the writ of summons shall have a limit, but that it may be renewed; and if renewed, shall be for all purposes renewed in the same manner. We suggest that the duration of the writ be six months, in lieu of the present period, which is four months, and that it may be renewed from six months to six months, within each period of six months."
A cheaper and simpler mode than now exists of renewing the writ is provided, by the affixing to it a stamp or seal, stating the day of its renewal.
If there is ground for believing that a defendant purposely evades service of a writ, with a knowledge of its existence, the proceeding by way of distringas to compel an appearance must be resorted to. This process is, in fact, another mode of attempting to give the defendant notice to appear. Upon this the Commissioners observe
"According to the present practice, the distringas is a very expensive, and, as it appears to us, unnecessary process. We propose that the writ [i. e. of distringas] be abolished, and in lieu of it, that power be given to the court or judge to order that the plaintiff may proceed at once as if personal service had been effected, or to direct
a notice to be served, or attempted to be served, in such manner as may be directed, requiring the defendant to appear; and upon this being done, to authorize the plaintiff to proceed.'
This machinery appears to answer the whole purpose of the distringas, and at the same time to keep clear of the disadvantages which attend the present practice. The writ of distringas is also adopted for the purpose of proceeding to outlawry against a defendant who has quitted the country. This is a course of proceeding of the most absurdly precise kind, for it is always possible for a defendant to appear and set aside a judgment in outlawry obtained against him, without giving the plaintiff any security for payment of his debt.
"This," says the Report, "is the inevitable result of the conflict between the rule of law, that no man shall be outlawed who is not within the kingdom at the time of the exigent awarded, and the rule of practice adopted by the courts, not to allow a distringas to issue for the purpose of proceeding to outlawry, unless it be established that the defendant is out of the kingdom at the time; so that the proceeding can practically only be instituted in cases where the result is sure to be erroneous.'
Such a proceeding, it is justly remarked, is founded upon principles wholly false, and unworthy of the jurisprudence of a civilised country. As a notice to the defendant it is practically useless; as a means of compelling payment of the plaintiff's claim it is equally inoperative. But it is most essential that there should be some easy and effective means of enabling creditors to proceed against fraudulent debtors who have gone abroad for the purpose of avoiding a judgment against them. The mode suggested is the following. The only drawback to its adoption is the chance of its being made a means of enabling proceedings to be taken behind a party's back without his knowledge.
"In lieu of proceedings to outlawry, the total abolition of which we recommend, we propose that a writ of summons may issue against and be served upon a British subject resident abroad, and that the court or a judge may have power to authorize proceedings to be had to judgment and execution, upon being satisfied by affidavit that the writ was served upon the defendant, or came to his knowledge, and that he wilfully neglects to appear to the writ. * We believe that it will afford some check to persons recklessly or fraudulently contracting debts here, and then setting their creditors at defiance by leaving the country; a practice of no unfrequent occurrence."
An analogous mode of proceeding against a foreigner resident abroad by a person resident in England is also suggested, in accordance with the provision to this effect which exists in France. Different opinions may be entertained of the propriety of thus
extending the jurisdiction of our courts, and we do not observe that much stress is laid upon it in the Report. This proposal is, however, quite beside the general scheme of practice suggested by the Commissioners, which will be unaffected equally by its adoption or rejection.
The writ of summons having been thus issued and served, or attempted to be served, the defendant will either appear himself, or the plaintiff will be allowed to proceed as if the defendant had appeared. This form the Commissioners propose to retain in its integrity in all cases, as a mere preparatory step to the statement of the plaintiff's cause of action They advert to suggestions offered to them, that an appearance by the defendant is altogether needless, but they state that in their judgment "it is a convenient mode of intimating to the plaintiff the defendant's intention of resisting the action." But we cannot help observing, that the data furnished by this Report lead us very strongly to the conclusion, that, in the great majority of suits, the appearance of the defendant might be made the occasion of a final settlement of the action. Out of the number of writs of summons issued, it appears that a very small per centage indeed proceed to trial. Of those which eventually come before a jury, one-third are undefended causes. The majority of these arise upon bills of exchange or promissory notes, in which there is no real defence to the plaintiff's claim. But the defendant is, with the sole object of gaining time, enabled to place upon the record a plea denying his making or acceptance of the security. After all the machinery of declaration, plea and issue has thus been put in operation, and perhaps a jury summoned and the record entered, the parties go before a judge at chambers, who orders that the defendant shall admit what he before denied, and the farce is then gone through of the jury giving a verdict upon a matter no longer in issue between the parties. These proceedings, however, are not only unnecessary, but are very costly, and injurious by the delay which they interpose to the attainment of a judgment by the creditor. The evidence of Mr. Morris, published in the Appendix to the Report, informs us that in the Court of Exchequer, "in an undefended cause upon a bill of exchange, upon the order to admit, the court fees would be 47. 1s. 6d. at the lowest." This is in addition to 17s. paid for entering the record, and the bill of the attorney in bringing the cause to issue. The counsel's fee, ordinarily in such cases merely a guinea, adds a very insignificant item to the costs. These court fees include 2s. to the chief baron's coachman!! The defect which appears to us now to exist in regard to such cases is, that the necessity for the defendant admitting his liability is deferred until after issue is joined.
We believe a very simple remedy might be adopted by enabling a plaintiff, who sues upon a negotiable instrument or other written document, where it is probable that there is no defence to the demand, and where the only question is whether the defendant signed or executed the document, to require a defendant to appear before a judge in the first instance. The writ of summons should in that case contain a statement of the substance of the claim. The defendant should be required, within the prescribed period, to attend by himself or his attorney before the judge and to admit his handwriting. If, as would generally occur, he did this, power should be given to the judge at once to order judgment to be signed for the amount of the debt, but to restrain the plaintiff from issuing execution before a specified date, if he thinks justice requires that to be done. But the property of the defendant should be bound from the date of the order, just as it now is from the delivery of a writ of execution to the sheriff. This would effectually prevent any disposal of the property in the mean time, by which the plaintiff's claim might be nullified. In order to provide for possible cases of fraud or mistake in obtaining the order, a defendant should be enabled, upon swearing to a defence on the merits, to set aside the order and judgment; but the burthen of proof should be thrown upon him. If the defendant does not appear, the judge, upon satisfactory proof that the writ has come to his knowledge, should have power to make the order ex parte. We think that the suggestion for indorsing the particulars of claim advanced by the Commissioners might be beneficially extended in this manner. We believe that this early appearance before a judge might be more extensively adopted; but, at all events, its application in the cases before mentioned seems to offer a clear advantage to bonâ fide creditors against fraudulent debtors.
Passing on to the next step in the cause, the Commissioners have decided upon preserving the declaration as a distinct proceeding; but where the claim is for a debt, or substantially for a liquidated demand in money, or arises upon a written security or a simple contract, they in effect unite the writ and declaration by permitting a special indorsement of the particulars of the claim to be made upon the writ, under which the plaintiff may, in case of non-appearance by the defendant, at once sign final judgment and issue execution, upon which judgment no error can be brought. This proposition is directed to the same object as we have already advocated in reference to undefended causes. If the defendant appears and resists the claim, it is proposed