cery at Westminster, even during the terms which fall within the sessions of parliament, will be abandoned. It is destructive of the time both of counsel and solicitors, and tells most against those who have most to do, i. e., against those whose time is of the greatest value to the public, that during those terms all court business should be transacted a mile and a half from their chambers and from the Masters' offices. While the Lord Chancellor was sitting now in Chancery, now in the House of Lords, there was some ground for argument in favour of this state of things. It has been abandoned as to those terms which do not fall within the period when parliament is usually sitting; which shows that the inconvenience to the suitors is only retained out of respect and necessary attention to the double avocations of the Chancellor. But now that the Lord Chancellor may be expected rarely to sit in Chancery during those two terms, it is to be hoped that the wandering propensities of the court may be checked, and that it may take up its permanent residence in the old hall of Lincoln's Inn. On the whole, we are disposed to take the same view of this measure as was taken by Lord Brougham in the House of Lords, in a speech, which we regret to perceive, from the concluding observations, to be the last from his lips, at least for a time, in that place. We do not mean the view in his opening observations, where he seemed to give his unqualified approbation, but rather the view he took when, in the course of his speech, he had recalled the melancholy shortcomings of this measure beneath the magnificent promise in the queen's speech at the opening of parliament; when, with his own peculiar force of expression, he described this measure as a step,—not a long step, not a stride, but still a step in the right direction; and when his lordship emphatically warned the House, lest any dreamer should for one moment imagine that this or any other structural alteration of the Court of Chancery could for an instant maintain the character of such a total reform as was necessary. We can only add the expression of our sincerest wishes, that his lordship may recover sufficient strength, energy and intellectual vigour beyond his we do not ask,-but sufficiently bodily strength to see and take that prominent part which he alone is worthy to take in the glory of a reconstruction of the whole system worthy of himself and of the intellectual advancement of the age. B. ART. VIII.-COMMON LAW REFORM. Copy of the First Report of Her Majesty's Commissioners for inquiring into the Law, &c. Presented to both Houses of Parliament by command of Her Letter to Lord Campbell, Lord Chief Justice of England, on Reforms in the THE HE Commissioners who were entrusted last year with the duty of inquiring into the procedure of the Superior Courts of Common Law have presented to the Crown the first instalment of their investigations. This Report bears date the 30th of June, 1851, being somewhat more than a twelvemonth from the time when the commission issued; and considering the extent of their labours, and the various opinions between which they have had to decide, we cannot say that the interval which has elapsed has been too great, especially when we consider that those engaged in the compilation of the Report have been closely occupied during a great portion of the year with the business of their profession. This may be looked upon as the first positive step taken at the present juncture by those connected with the administration of the law, to reform their own system; the first effort towards internal reconstruction; and we therefore feel that its appearance should receive notice in a Magazine dedicated peculiarly to legal subjects. The very brief period prior to our own quarterly publication, during which this Report has been in our hands, obliges us to confine our remarks upon it to narrower limits than we should have otherwise wished. Its contents will, we may venture to say, be well worth the careful perusal of all who are interested in the maintenance or establishment of a sound system of legal procedure. Various opinions may be, and we know are, entertained upon the extent of alteration which is required. While some persons conceive that the existing method of raising questions for the determination of a jury or a court should be entirely abolished, others incline strongly to the maintenance in its integrity of a system which has been in operation for so long a period. Our own opinion is that neither of these extreme views should be adopted. A judicious lopping away of idle and mischievous forms, combined with a prudent preservation of those parts which are founded in sound reason, appears to us to be the most proper course. Our present object is to direct attention to the leading contents of this Report, pointing out those instances 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 place within the jurisdiction of the court. any 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. 66 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. 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. * * * We 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 |