that a clause had been introduced into my Lord Brougham's amended bill, permitting clerks of attorneys to appear for their employers as advocates in the County Courts. To add to the pointed and well directed objections to such a permissive clause is needless, as therein is contained the sum and substance of those most tenable, and they are only required to be perused to forcibly and at once bring home to the minds and convictions of every one their truth and real bearing; yet I would be permitted to remark, it would be but fair to encourage a bar, the attorneys, of course, being permitted to intervene between them and the clients, as the courts would thereby ascend in respectability, and justice would be considered as being better and more efficiently meted out with such checks and aided by such improved knowledge as the very position of a barrister requires, as it seems to us, the duties of the attorney and the advocate or barrister are as distinct in their natures as those between the judge and the barrister, in whom no amalgamation of duties ought to exist, the duties of a judge and those of an advocate being from their very existence and importance incompatible the one with the other. That such is the view taken by my Lord Brougham is unquestionable-then why restrict the barrister to cases in amount varying from 201. to 50l. and why for lesser amounts allow an unity to the attorneys of attorneyship and advocacy, when at the same time the policy of the union of functions of both in one is so discountenanced! And when my Lord Cranworth so emphatically expresses his certainty of the fact, "that the barrister would makɔ̃ a particularly bad attorney, and that the attorney would make a very bad advocate"! The reason, or the why or the wherefore this strange difference should be, certainly does appear irreconcilable, and submit that if the barrister is to have a right of audience at all, that right ought to be unconditional and unrestricted, for a 50s. case oftentimes involves as great, and sometimes greater, trouble, points of law, and intricacy, as one wherein 50%. is in dispute, as was conceded by my Lord Broughham. The fact of attorneys generally being bad advocates is universal, and for a very plain reason, namely, that their duties have hitherto been confined solely to the machinery and getting-up of a case in which all the minutiae of the facts and circumstances have been considered, weighed, and brought together, the natural consequence of which is, that the attorney's mind is so interwoven with those facts and circumstances, and the niceties, difficulties, and good and bad points of his case, by which he is so absorbed, as to render him incompetent for the discharge of the duties of an advocate, which a barrister unfettered with such disadvantages, and having the case plainly before him, is therefore the more capable of discharging. Let it be understood that I do not write in disparagement of the ability of the attorneys, which I am at all times ready and willing to acknowledge, for I believe them to be, taken as a body, gentlemen of undoubted talent; but, with every deference, I only mean to submit, that the nature of their professional calling disqualifies them from the discharge of those duties which peculiarly belong to the barristers, and which their education and course of studies have fitted them for-the attorney being, for the reasons I have before assigned, not his own free and unbiassed agent whereas, on the contrary, a barrister is completely disinterested, and free from any personal motive, save the proper advocacy, as far as in his power lay, of the duty intrusted to his care, judgment, and management.

I am Sir, yours &c.,




SIR,-I shall be glad to be permitted to make a few remarks upon the leading article, headed "Clerks in the County Courts," in a recent number of The Law Times, which I feel assured you will, in accordance with your accustomed impartiality, permit to appear in your columns.

You rest your objection to clerks appearing in the County Court on behalf of their employers upon three grounds. To the first, I reply that, so far as I have yet seen, the better class of the profession of either branch are at present deterred from practising in these courts. If you wish proofs, let a return be obtained of the names of attorneys practising in the County Courts, and then compare that with the Law List. You will find, let me assure you, a woful falling off.

To obviate your second objection, I would suggest that permission to appear should be given to clerks who are or have been articled, and to actual managing clerks, and to such only of those as their respective principals may authorize in writing to appear for them. A discretion might also be given to the judges, which would be effectual in case any agents or such like vermin (as you properly term them) should attempt to act.

And thirdly, I would respectfully contend that it would not be any degradation to the County Court that an articled or managing clerk should be allowed to appear there. I need not remind you that many of the most important matters before the judges of the Superior Courts and the Masters in Chancery are conducted by

clerks, many of whom are equally competent with their principals. The result of the present system is, that attorneys with anything like a good practice, will not appear in the County Court if they can avoid it, both for want of time and in consequence of the remu neration being so very trifling. They are therefore obliged to give this portion of their business to others, who devote their particular attention to the County Court. I am satisfied that if the attendance of clerks were allowed there would be much more business done in these courts, especially in those cases where the option is given to sue in the Superior Court if preferred.

Articled and managing clerks generally must remember that "union is strength," and I trust they will bestir themselves to obtain justice, which unfortunately seems now only obtainable by agitation and combination. One thing is certain, they must not expect assistance at your hands; your remarks seem needlessly severe, and will, I doubt not, be so felt by many who have hitherto watched your onward progress with satisfaction. I trust you will not think it ill-timed if I suggest that it is scarcely fair that all should suffer because there are a few black sheep in the flock; and especially when it should be borne in mind that occasionally the best examples are not set before us by the higher branches of the legal profession. I am, Sir, yours, &c. A MANAGING AND ARTICLED CLERK.

April 7th, 1851.



SIR,-As one of the poor country high bailiffs, I will, with your permission, venture to make a few remarks in answer to that considerate and charitable letter "A Clerk" was pleased to favour you with last month, relative, principally, to the fees which the high bailiffs receive, and some of which he seems very desirous of mulcting them of; and if that cannot be, he, at least, evidently wishes that, on any revision of the scale of fees, they should be deprived of them, as it appears to be extremely hurtful to his pride that, even in a solitary instance, the high bailiff should be better paid than the clerk.

The clerk's "funny" remark that the high bailiff is allowed two fortieths of the judge's and clerk's fees for "just doing nothing at all," is not very appropriate, and he would have shown far better taste and less petty feeling had he refrained from making it, inasmuch as the two-fortieths is clearly intended as a compensation to the high bailiff for the loss of the calling on the cause fees, and probably because it was considered that even country high bailiffs ought to be paid as well as the clerks for attending the courts. But this to a clerk must appear unreasonable.

I am very sorry in the slightest degree to depreciate the clerk's duties, but when "A Clerk" writes about "the bookkeeping of the clerk's office being a far more onerous duty (in point of time occupied!) than all the bailiff's duties put together," he says that which I feel sure, had his mind not been clouded with visions of the bailiff's half-crown, and their two-fortieths of the judges' and clerks' fees, he would never have darkened his paper by writing. Then, too, what a state of mist must he have been in when he perpetrated such stuff as the high bailiffs (of country districts) being better remunerated that the judges or clerks! Only fancy, Sir, the profit a bailiff must get out of an execution for 27. four miles off, the fees for which, including assistant and other expenses, would be 3s.; and we, poor fraternity of country bailiffs, know too well that the majority of executions do not issue for

more than 27. or 31.

As "A Clerk" seems partial to old adages, he will recollect there is one that informs us that "comparisons are odious," and when officers of a court of law get making them between their relative duties and pay, it is absurd, or, to say the least, injudicious, and the public are very apt to conclude they are both over-paid and under-worked. A Clerk," in his sorrow, also appears to think that Government considers the high bailiff's services more valuable than his, which, as it is very likely they do, is, no doubt in his mind adding insult to injury.

Much as I dislike discussing the relative duties of the clerk and high bailiff, still, as the former has endeavoured so much to depreciate the latter's services, for the purpose of exalting his own, it becomes necessary to know in what consists his title to superior remuneration and ability. It is true he has to keep the booksmere A B C work-and make out the plaints; that is, the easy ones, for the difficult ones the plaintiffs or their solicitors must themselves frame, as the clerks, very properly, will not take that responsibility upon themselves. Well, then, they have to attend the courts, and record the judgments-a very responsible duty, but far from difficult. There are other trifling duties, which occupy time, and for which, of course, proper remuneration should be given. And these are the duties, that a certain portion of the clerks are continually trumpeting forth, as requiring so much ability and pay to that of the high bailiffs! The high bailiffs' duties, responsibility, and costs out of pocket, speak for themselves.

The Lords of the Treasury, I humbly think, in improving the bailiffs' fees, have recognised the old adage of "The labourer is worthy of his hire," and not, as a clerk thinks, repudiated it.

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SIR-I cannot conceive your motive in the Law Times of the 5th instant, in attacking attorney's clerks, unless through your correspondent C. R. G.: are you aware, sir, that very frequently clerks are attorneys; that the greater part of the business, both at the judges' chambers and in other courts is conducted by clerks, if not, allow me to say you have been misinformed upon the subject. I, for one, think it a hard case that an attorney who employs a skilful managing clerk at a salary from 2007. to 3007. per annum, is not allowed to send him to conduct a case in the County Court whilst can be represented by him at chambers, where frequently the most important points of law are discussed before the common law judges, and where they are very often opposed to counsel; surely, if the most learned men, the judges of the Superior Courts, deign to hear an attorney's clerk, can it be for one moment contended they should be refused audience in the County Courts?

In trials before the sheriff under 3 & 4 Will. 4, c. 42, ss. 17 and 18, pleadings often run long and intricate, but notwithstanding this, the majority are conducted by clerks, no counsel's fees being allowed on taxation.

Is not your argument groundless when you start the proposition of sending copying clerks, whilst petty-foggers will inundate the courts with agents for the purpose of dividing the proceeds. The act of Parliament contemplates a managing clerk of six months' standing; can any attorney have more than one managing clerk? I have been twenty years in the profession, and never heard of it. Respecting employing another attorney upon agency terms, I Lelieve most of my professional brethren who have had anything to do with the courts are aware of the principle it led to, and need no information. I am also certain that the most respectable solicitors would practice in the County Courts in the event of their clerks being allowed to act under their superintendence.

I am glad the practice of refusing an attorney's clerk audience is not adopted in every County Court. Mr. Heath (than whom, in my humble opinion, a better does not exist), the judge of the Bloomsbury County Court, allows an attorney's managing clerk to appear and plead, provided he is duly authorized by his employer. I, for one, and I am certain I do not stand alone, or anything like it, in the profession, beg most respectfully to differ with your correspondent's views, and I trust you will grant me the favour of inserting mine in your valuable journal. April 10, 1851.

I am, Sir, yours, &c.




SIR-Can any of your numerous correspondents inform me what is the practice in their courts on a case like the following

occurring :

A plaintiff living about 100 miles from the defendant (the debt being 84. odd) sues in the defendant's district court, and not thinking it worth the expense of sending witnesses so great a distance to prove the delivery of the goods, the defendant himself is summoned for that purpose. The defendant does not appear at the hearing, and the bailiff of the court having sworn to the delivery of the summons at his dwelling-house, and evidence given as to the defendant being seen at his dwelling-house since the service of the summons, the judge was asked to enforce the 10%. fine for nonattendance; this was refused because the defendant's expenses had not been tendered to him, also on the ground that the amount of damage caused by the witness's non-attendance ought to be proved.

Now, I wish to know whether the bailiff of the court, as part of his duties on service of the summons, is not bound to pay these expenses and charge for them previous or subsequent to such payment, and, if he neglects, is it not an omission by the court itself? also what expenses are usual for a witness residing about 200 yards from the court house, and whose attendance would only be required for about twenty minutes? and if it is the practice in most courts to require proof of the summons having come into the defendant's own hands? The attorney is excluded from all interference with and recompense for service of the summons, and it is not surely to be expected that he is to instruct the bailiff as to his duty while the lafter is pocketing the fees.

The course adopted by some judges in requiring such strict proof

in these inferior courts, in my opinion, takes away the only benefits the County Court Acts were intended to produce.

A case in point occurred some time since, when a wife being called as evidence against her husband; she was rejected by the judge on the general ground that a wife could not give evidence against her husband, although section 83 of the 9 & 10 Vict. c. 95, seems to me clearly to allow this, but on the case (one brought by a creditor against the husband for necessaries supplied to the wife) proceeding further, the judge required proof of that very marriage the existence of which he had only a short time before made a cause of rejection of the wife's evidence, and actually refused general reputation as sufficient proof (but see Leader v. Barry,I Esp. 353); the idea of having (for the purposes of County Court Debts) to bring persons who witnessed the marriage from long distances seems contrary to the spirit of the County Court Acts, and mischievously increasing costs.

Also the objections which have been raised by some judges against a defendant being summoned as a witness against himself, appear to me entirely without weight, for such a course is really in favour of cheap and speedy justice, which, if I mistake not, is the real principle on which such a system as the County Courts first emanated, in fact, by so doing the plaintiff runs a greater risk than by examining other uninterested witnesses. His only safeguard, if the defendant denies the debt, being an indictment against him for perjury, a rather costly luxury as a sequetur to the loss of the debt and payment of the court fees, the amount of the latter are too well known to require comment.

by Lord Brougham, as to scales of costs, and particularly that The valuable suggestions made by The Law Times, and adopted notice must be given of disputed claims are great boons to the at least one good effect, that matters will be now expressly enacted profession. The constant new legislations on this subject will have which before were left to the caprice or prejudice of the judge. I am, Sir, yours, &c.,



E. M.


SIR,-I see with surprise that by the proposed bill for the further extension of the County Courts, clerks of attorneys are to be heard as advocates. I beg respectfully to suggest to Lord Brougham that persons acting as attorneys without the slightest pretension to dicial to the public. do so is very unfair towards the profession, and will be very preju

The bill says the clerk must have been six months with his embecome an attorney in the County Courts by paying an attorney a ployer, so that any person, no matter what his character is, can small consideration for the use of his name. think I could name half a dozen attorneys without trouble who will be but too happy to lend their names for about 1s. 6d. a day, so that suitors will be Courts, just in the same way as the friends of prisoners at the Old fleeced of their money, as well as losing their actions in the County Bailey lose their money by disreputable persons practising in the name of an attorney; it is well known that prisoners are tried without being defended, when, at the same time, money has been paid for their defence scraped together with the greatest difficulty. And so it is in the Insolvent Court; prisoners are unsupported at the hearing because clerks of dishonest attorneys run away with the money paid by the unfortunate insolvent for court and counsel fees. I should be glad to have these assertions disproved, but if they cannot be, which I am sure they cannot (as, if necessary, I clerks all over London using their names.) I think it prejudicial could supply the name of the attorneys who at this moment have attorney, and unfair towards an attorney who has served five years to the public that such persons should assume the privileges of an apprenticeship without salary, paid one hundred and twenty pounds indenture stamp, and is further qualified by a proof of capacity by passing an examination before he is allowed to pay the admission fees, between thirty and forty pounds. I am, Sir, yours, &c.



TO THE EDITOR OF THE COUNTY COURTS CHRONICLE. SIR,-Numerous letters and comments have from time to time appeared in your valuable journal, on the subject of allowing attorneys' clerks to appear as advocates in the County Courts. Now, Sir, with all due deference to the writers, I must say it appears to me that this subject has not been treated with candour, but that it has been regarded with a feeling of jealousy by most of the writers alluded to, and, consequently, condemned without a fair trial. I readily concede that to throw open the County Courts to the general body of attorneys' clerks, without restriction, would be most objectionable; but this does not, I humbly submit, furnish a reason for total exclusion.

In few instances, as I believe, would attorneys avail themselves of the power to appear by a clerk, except in those instances where firms, or attorneys in large practice, have in their employ persons of ability and respectability, by whom they might appear without

discredit to themselves, injury to their clients, or offence to their professional brethren. That there are in the country many such persons will not, I imagine, be denied; nor can I see how the County Courts" could be degraded in public esteem (as you suggest) by the appearance of such men.


My purpose in addressing you is, however, rather to offer a suggestion than enter into discussion; and I subrait that, under such restrictions as the following, no evil could result from allowing clerks to appear in the County Courts for their employers.

I would limit the right to appear by clerk to cases were the sum claimed should not exceed (say) 201., and would suggest the following rules on the subject.

First. That no attorney, or firm of attorneys, shall appear by clerk, unless he or they shall have first obtained from the judge of the court permission to appear by such clerk (which permission should only be given on production of satisfactory evidence of a bona fide engagement as clerk, and testimonials as to respectability), and shall have registered the name of such clerk with the clerk of the court (for which registry a small fee might be taken.) Secondly. That no clerk shall be entitled to be heard on behalf of his employer until he has delivered to the clerk of the court an authority in writing (signed by his employer) for him to act in each case in which he shall appear.

Thirdly. That the attorney or firm registering, and also the judge of the court, shall have power to remove the name so registered from such register, and the right to appear shall thereupon cease;-and

Lastly. That no attorney or firm shall be allowed to register more than one clerk at the same time.

I think, Sir, regulations such as these would obviate many of the difficulties suggested by your correspondents, and effectually prevent the abuse of the privilege by "sham lawyers,' as no attorney would, I conceive, so far overlook the consequences to himself as to register and give authorities to act to a person not really his clerk.

Trusting to your sense of "fair play" for the insertion of these suggestions, I remain, Sir, yours, &c., Gloucester, April 8th, 1851. A CLERK.



SIR,-Your correspondent, "Scrutator," in your last number, has submitted the outline of a plan to abolish the office of treasurer to the County Courts; but what would be thought of the following, viz. :-For all the proceedings to be stamped with the amount of poundage payable on each, and the bailiff's mileage (if any) to be stated in the margin, and a note paper given to the suitor by the clerk similar to the plaint note now in use of the fees, &c., which he receives, and the clerks to provide themselves with the forms of proceedings, having the proper stamp duty affixed, ready for use. A balance sheet of the ledger might be prepared every three months, and forwarded to the Treasury, as well as the monthly account, and the clerk required to attend at the Treasury with the plaint book, minute book, cash book, and ledger, as might be required, being allowed only his travelling expenses-most of whom can go to London, and return the same day. Loose sheets of the said books and ledger to be used in the absence of the originals, and the entries to be copied into the latter immediately on their return. In this case, then, what could be the utility of I am, Sir, yours, &c., NO CLERK. P. S.-The books at present in use ought to be half the size. April 19, 1851.


ANSWERS OF THE COUNTY COURT JUDGES UPON THE EXAMINATION OF PARTIES; COMMUNICATED TO THE HOME DEPARTMENT BY THE LAW AMENDMENT SOCIETY. THE following letter was addressed to the judges of the County Courts by the Secretary of the Society for promoting the Amendment of the Law, to which the answers of the judges are appended.

21, Regent-street, 10th December, 1850. SIR, I am requested by the Council of the Society for Promoting the Amendment of the Law, to request that you will do them the favour to answer the following query:-"In your judg. ment has the law which enables parties to be examined as witnesses in the County Courts worked well or ill ?"

I am, Sir, your obedient servant,

John Hildyard, Esq. &c. &c. &c.

Circuit No. 1. Newcastle-on-Tyne, 21st December, 1850. instant, addressed to me at Harperley. SIR,-I beg to acknowledge the receipt of your favour of 10th

In my opinion the law enabling parties to be examined as witnesses in the County Courts has worked well. In a large proportion of the contested cases in those courts there would be a failure of justice but for this practice. The additional temptation to perjury, and the occasional commission of it induced by the practice, are an evil greatly outweighed (in my judgment) by the increased facilities it affords for the general administration of justice among the community. The truth is generally discoverable through all the figments of a party under an open examination in court, where his demeanor is scrutinized and his statements are sifted. And, after all, suborned witnesses may always be found (where there is the profligate design) who will go equal lengths in the endeavour to pervert the truth with the most unscrupulous and reckless of parties; so that, in stopping the mouth of a dishonest party, you encourage the subornation of false witnesses, while you take from the honest party the best means of establishing his rights. I am, Sir, your very obedient servant, Arthur Symonds, Esq., Hon. Sec. GEO. H. WILKINSON. &c. &c. &c.

Circuit No. 2.

Durham, 17th December, 1850, SIR,-In my judgment the law which enables parties to be examined as witnesses in the County Court has worked well, and is of great benefit. Without such a law very few small tradesmen could recover their debts, for they are not in the habit of employing shopmen or apprentices to conduct their business. Occasionally plaintiffs are guilty of falsehood and prevarication, but in general their testimony is supported by their trade books, or other written evidence made at the time of the dealing or transaction. At first a great many defendants came up and were guilty of gross perjury, but the number of cases in which the defendants are guilty of false swearing has considerably decreased. As far as the County Court is concerned, it is far better that the case should be proved by the plaintiff or his wife, supported by their trade book, or other written evidence, than entirely depend upon the alleged admission of the debt to some debt collector, which was too often the case in the old County Court. When I state that the testimony of the plaintiff or his wife is supported by their trade book or other written evidence, I do not mean that their trade book is admitted as evidence, but merely that it is examined by the court to ascertain whether the evidence of the party is corroborated by some entry or memorandum made at the time of the dealing or transaction. I should consider that the repeal of the law would be of great detriment to the trading community. Yours faithfully,

Circuit No. 3.


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27, Sussex Gardens, Hyde Park. SIR,-The engagements of my circuit have prevented an earlier be examined as witnesses in the County Courts has worked well or answer to your inquiry whether the law which enables parties to ill.

In my judgment it has worked well.

Permit me to send you an extract from an address which I made at the first sitting of my court after the act for extending the jurisdiction.

"It is but a prejudice of education which leads the lawyers to an excessive dread of the perjury of parties. Of this the following statement will give the proof. I take a note in writing of every case which comes before the court. From these notes I have ascertained that in the County Court at Preston during the year 1848 eleven hundred and eight defendants admitted that the plaintiffs had some cause of action at that time or previously, whilst only sixty-four absolutely denied that the plaintiff ever had any right at all. A thousand and seventy admitted the demand in various ways, thus:

"163 by payment of the demand into court. "153 by admission made in open court.

"270 by admission out of court, afterwards proved in court, such admission being made after action brought.

"284 by not appearing at the hearing, which in the superior courts is considered an admission, and in the County Court may be more reasonably so considered, for there appearance costs nothing, but where nevertheless the plaintiff was still required to prove his case on oath in open court.

"200 by admission made to the plaintiffs after action, but who proceded no further, in consequence of the defendants promising to pay without further proceedings, or stayed proceedings at the solicitation of the defendants on account of their poverty. Though this last number is not given with absolute precision, the error cannot be large.

38 defendants admitted part of the demand, and the plaintiffs accepted judgment for the part so admitted.

100 defendants disputed the plaintiffs' demand, on various grounds, as infancy, coverture, statute of limitations, discharge under insolvent act, payment, &c.

"In these 100 cases the plaintiffs obtained judgment in thirtynine for their whole demand, and in thirty-three for part of their demand. The defendants obtained judgment in twenty-eight. "In the cases of the sixty-four defendants who denied that the plaintiffs had any demand, the plaintiffs recovered judgment for their whole demands in thirty-four, for part in three, and the defendants recovered judgment in twenty-seven.

"Fearing that there might be something peculiar in the Preston Court, I proceeded to take a similar account of the cases in the County Court at Blackburn. The result so nearly coincides that that return need not be stated.

"These accounts show conclusively that in the County Courts truth is the general rule, and falsehood the exception, indeed the rare exception. If such be the case with persons in the humblest walks of life, what is to be expected from those in the higher, where the loss of character is of so much greater importance, to say nothing of the effects of education or religion."

Permit me also to refer you to the enclosed extract from an address which I made at the time the County Court Aet first came into operation and superseded a Court of Requests, of which I was judge.

To attain greater certainty, a new principle is to be brought into action. It was a maxim in our law courts that no man should be heard as witness in a matter wherein he was himself interested; and so far have the lawyers carried this rule, and so little reliance have they had either on the honesty of mankind, or on their own ingenuity, that they have presumed that every man will perjure himself for the tithe of a farthing, and that neither judge nor jury can discover his falsehood. Though the soundness of this maxim has been for some time doubted, and the law has been very lately altered so as to allow interested witnesses to be heard, the general rule still prevails as to the parties and their wives. Now, in an action by a shopkeeper against his customer, there are usually four persons who know the truth better than any other persons in the world; they are the shopkeeper and his wife, and the customer and his wife. All these persons are, by the ordinary law, incapable of being examined; in these new courts we are to hear them all, and give what credit we think really due to their statements.

"Having presided for near twenty years in a court of common law of great practice, in which the parties could not be heard, and for five years in a Court of Requests, in which the parties may be heard, I must bear my testimony in favour of the latter mode of attaining truth; and I must do justice to the humble suitors of the court at Blackburn for the honesty with which they generally admit the truth against their own interests.

"In fact the power of examining the parties makes the attendance of other witnesses unnecessary in nearly all the cases. In the very few where witnesses are required, the court has been in the habit of giving time to procure their attendance by adjourning the hearing until the next court day. The saving of expense by this course has been very great." I am, Sir, your very obedient servant, JOHN ADDISON, County Judge of the 4th or North Lancashire Circuit.

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it, I am happy to say that only in two instances have I had occasion to direct indictments for that odious crime. On the other hand, I am satisfied that in at least one half of the cases which now come before the County Courts there would be a practical denial of justice if parties and their wives were not admissible as witnesses. With a careful judge the advantage of the present system in the County Courts is, I think, incalculable, the evil infinitesimal, if not altogether imaginary. I remain, Sir, your obedient servant, JOHN WM. HARDEN, Arthur Symonds, Esq., &c. &c. &c. Judge of Circuit 7.

Circuit No. 8.

SIR,-In reply to the question, "Whether the law that enables parties to be examined as witnesses in the County Courts has worked well or ill," my answer is, that I think it works well. For the purposes of small debts, such a privilege is indispensable. But even for higher demands, and indeed in all cases, I apprehend that such a right would be beneficial. I think the examination of the parties promotes the object of every inquiry, namely, the ascertaining of the truth. It is true that the interest of the parties may be expected to induce them to swerve from the truth, and so it often does, but I think not nearly to the extent that might be anticipated; and even in those cases, I do not, in general, think it difficult, by a comparison and contrast of the statements of both parties, to ascertain where the truth lies. And I have repeatedly found that the evidence of the party in his own behalf has been of essential benefit to his opponent.

I am, Sir, your obedient servant,

Judge of the County Court at Manchester.

London, 20th December, 1850. P.S.-Some delay has occurred in my sending this answer, from your note having been forwarded to me here from Manchester.

Circuit No. 9.

Victoria Park, Longsight, Manchester, 28th December. SIR,-In reply to your letter of the 10th instant, I beg to acquaint you, for the information of "The Council of the Society for promoting the amendment of the Law," that in my opinion the law which enables parties to be examined as witnesses in the County Courts has worked well, and I can see no reason why the same principle might not be adopted with advantage in all courts. It is, I am aware, alleged by many, whose views deserve the highest respect and consideration, that direct encouragement is thus given to perjury. But taking my own experience as a criterion, I am prepared to say, that, having regard to the amount of business trensacted, this crime does not exist in the County Courts to a greater extent than in the superior and other courts to which the law in question does not apply.

I have the honour to be, Sir, your obedient servant, The Secretary of the Society JOSEPH S. JOHN YATES. for promoting the Amendment of the Law, 21, Regent Street, London.

Circuit No. 10.

The Hallhouse, near Leigh, Lancashire, 31st December, 1850. of the 10th instant. My answer to the question there put, is, that SIR-I have to apologize for not replying earlier to your note the law has worked well. Arthur Symonds, Esq.

I am, Sir, your obedient servant,

Circuit No. 12.

County Court Office, Halifax, 18th December, 1850. SIR,-I have no difficulty in replying to your letter of the 10th instant, that in my judgment the law which enables parties to be examined as witnesses in the County Court has worked well, and that it has been the means of recovering in the circuit over which I preside several thousand just debts which otherwise would have been irrecoverable; and I will add that I have not seen any greater disposition to exceed the line of truth by parties than is generally found amongst the class of witnesses who are indirectly interested, though admissible under the rules of the Superior Courts. I am, Sir, yours very obediently, JAMES STANSFELD.

Arthur Symonds, Esq.

Circuit No. 13.

Wilsick, Doncaster, 11th January, 1851. SIR,-I have great pleasure in answering, to the best of my ability, the question which you have sent me from the Council of the Law Amendment Society, of which society I have the honour to be a member.

I have no hesitation in saying that the law which enables parties to be examined as witnesses in the County Courts has, in my judgment, worked extremely well; in fact, if small debts and damages for small wrongs are to be recoverable at all, such a law is indis


pensable. Without it, half the actions now brought in the County Courts would be entirely without evidence to support them, and in the other half an enormous amount of injustice would be done. It is a question whether it might not be desirable to enact that (subject to certain exceptions) debts under 51. should not be at all recoverable by action; but to effect this object by a sidewind, which would be the result of excluding the evidence of parties and their wives, would be most objectionable and unjust; and even were such an enactment as I have alluded to made as to the very small actions, I should still consider the admission of parties as witnesses most desirable for the large number of causes that would remain.

That the amount of perjury in the County Courts is very great cannot, I fear, be doubted, though it should be observed that the misstatements made arise more frequently from the extremely careless, hasty, and inconsiderate habits of answering of the lower orders, and from their slowness in understanding questions put to them, than from a deliberate intention to deceive. It appears to me also that the children, servants, and other connexions of the person calling them are just as ready to swear falsely as the parties themselves; and I very much doubt whether, in proportion to the number of witnesses sworn, there be a greater amount of wilful perjury committed in the County Courts than in those in which the testimony of parties is excluded; at all events I am satisfied that when committed, it is more frequently discovered in the former courts, and its consequences therefore are less mischievous, and that the system of examining parties tends very greatly to the eliciting

of the truth.

That it causes also an immense saving of expense must be obvious to any one who pays the slightest attention to the working of the Superior Courts, and sees what great costs are incurred in bringing various witnesses, often from distant places, to prove, perhaps indirectly and by presumptive evidence, facts which the plaintiff or defendant could most positively establish from his own personal knowledge, and which the opposite party, if sworn, would not for a moment think of denying. The above remarks have reference chiefly to the allowing parties to be sworn where they voluntarily offer themselves as witnesses. On the question of compelling them to be so at the instance of the opposite party I have somewhat more of doubt, arising from a feeling (perhaps a prejudice) in favour of the old English rule, that no man shall be compelled to criminate himself, for the distinction between a criminal and a civil proceeding seems to me little more than technical. Practically, however, at least in the County Court, there is less difference than might at first sight be supposed between the allowing and compelling a party to a cause to be examined; for if one party swears to a fact, and the other, having the opportunity, declines to deny it upon oath, there can be little difficulty in presuming it, as against him to be true.

With reference to extending to all other courts, criminal as well as civil, the law of the County Courts Act enabling parties and their wives to be examined as witnesses, though the question is not expressly asked by the society, I take the liberty of offering an opinion in favour of it. The main, perhaps the only substantial, objection is, the tendency to increase the already too slovenly and careless habits in transacting business of the great mass of mankind; but this evil would be far more than outweighed by the much greater certainty with which courts of justice would arrive at the truth, not to dwell too much on the undoubted advantage of such a practice in a pecuniary point of view. The objection that receiving the evidence of parties would lead to the increase of perjury appears a very futile one; for even admitting that such would be the result, which I doubt, it is merely the ordinary liability to abuse to which every law and usage is subject. A similar argument would apply against the institutions of property, because they lead to larceny, and to those of marriage, because without them there would be no adultery; indeed, such an argument, if pushed to its full length, would prove that no evidence whatever ought to be received, since, whenever a witness is heard, there is a risk of his speaking falsely.

The crime of perjury, however, and still more that of inconsiderate and careless misstatement are so common and so mis

chievous (the latter perhaps even more mischievous than the former), that some means more effectual than exist at present ought to be adopted for checking them. I would venture to suggest that any judge (whether of a higher or of a County Court), who is of opinion that a witness in giving evidence before him has committed perjury, should have power summarily and at the same sitting of the court to convict him of the crime, and inflict some moderate punishment. Such a proceeding, though the punishment were ever so slight, would have much more effect than the present tardy process of indictment; and moreover the expense of a prosecution and the numberless difficulties, chiefly of a technical nature, in the way of a conviction, afford to perjury at present in 99 cases out of 100 a practical impunity.

I have the honour to be, Sir, yours very obedient y,

Judge of County Courts, Sheffield Circuit. The Hon. Secretary of the Society for the Amendment of the Law.

Circuit No. 14.

Outwood, near Wakefield, 21st December, 1850.
SIR,-In reply to the question proposed by the Council of the
Society for Promoting the Amendment of the Law, I beg to state,
that in my opinion the admission of the evidence of parties to the
suit in the County Courts works well. Indeed I consider such
evidence indispensable in these courts, as in nine cases out of ten
the demand could not be satisfactorily established or the defence
made out without it.
I remain, Sir, yours obediently,

Judge of County Courts, Circuit 14.

To the Secretary of the Society for the Amendment of the Law.

Circuit No. 15.

Treasury, 14th January, 1851. SIR,-Absence from town has prevented my sooner answering your letter, dated the 20th December, 1850. I beg to state, that as judge of twelve County Courts in Yorkshire I have found the law which enables parties to be examined as witnesses in the County Courts has worked most beneficially, both before and since the extension of the jurisdiction. In acting as chairman of the committee of County Court judges to frame rules for the County Courts, I have, of course, had many opportunities of ascertaining the conclusions of others, and without any exception they coincide with my own. I have the honour to remain, Arthur Symonds, Esq. Your obedient servant, &c. &c. &c. ALFRED DOWLING.

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Hawford Lodge, Worcester, 1st January, 1851. SIR,-In reply to your letter of the 10th ult. inquiring my opinion "whether the law which enables parties to be examined as witnesses in the County Courts worked well or ill," I beg to say, from my experience as a judge of the courts of Worcestershire, and having before that appointment acted as the assessor of the Court of Requests at Plymouth, that upon the whole it works exceedingly well. It is, however, true that in some instances parties, even in a respectable station of life, swear falsely or adversely to each other. An attentive consideration of the manner and language in which the evidence is given will, in most cases, be sufficient to detect s premeditated lie, though it be uttered with every appearance truth; and when parties are informed that they may be punished for perjury, and that the evidence is recorded in the judge's notes, they instantly become more honest and truthlike. I shall be very happy to answer any other inquiry within my scope and ability, I am, Sir, your obedient servant, Arthur Symonds, Esq.


Circuit No. 24. Rocklands, near Ross, 6th January, 1851. SIR,-I beg to express my regret at not having sent an earlier reply to your letter of the 12th December.

I have no doubt that the law enabling parties to be examined as witnesses has on the whole worked well.

As regards its operation in the County Court, I think it must be considered as indispensable, and that the establishment of the court would have been of little value to the public but for its introduction; for in a large proportion of actions on contract which come before the court, the only witnesses to the contract are the parties themselves, the seller and the buyer.

superior courts, that would seem to depend on these questions, As regards the policy of extending the rule to proceedings in the 1. Does the new law tend to the discovery of truth, and the furtherance of justice?

2. Does it operate to increase or diminish perjury?

Now upon the first of these questions my experience certainly confirms my à priori expectations, that the evidence of the parties to the suit is a most valuable aid to the discovery of truth and the furtherance of justice.

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