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Varstas up the Marshalses of our Lord the now King, before the King
dansett a pie of Trespass on the case. For that WE u s the sand detendiang, keretofore to wit on the first day of December, in the rear of par Lunt One Thousind Eight Hundred and Twenty-six, at Maidstone, in the County of Kent vs indeoceci to the said plaintiff in the sum of twenty pounds, of lawful money of the last Kingdom of Great Britain, for divers goods, wares, and mer. citandizes et site sui gianaif by the said plaintiff before that time sold and delivered to the suni dered is spermi instance and request. And being so indebted, he the mi tente ? Consideration thereof, afterwards (to wit) on the same day and year aturi, s Munistune stür said, in the county aforesaid, undertook, and then and there fcbraly promised size sait plaindit to pay to him the said sum of money whenever afterwards die de sud settant huid be thereunto requested. And whereas also
berwarts wit) on the same day and your aforesaid, at Maidstone aforesaid, in the County atunssud, in question chat the said plaintiff, at the like special instance and request of the sud derendunt, had before that time sold and delivered to him the said defendant, divers ocher ques. vares, and merchandizes of him the said plaintiff, the said detendant undertus, and then and there faithfully promised the said plaintiff to pay him so much money as the last mencioned goods, wares, and merchandizes at the time of the sale and delivery there were masonudly worth, whenever afterwards he the said defendant shuaid be thereunto rey estist, and the said plaintiff avers that the goods, wares, and merchandises ist mentioned, as the time of the sale and delivery thereof were reasonably worth other twenty pounds of the like lawfiel money, to wit at Maidstone aforesaid, in the County atoresaid, whereof the sud defendant afterwards (to wit) on the same day and year aforesaid, there had notice: AXD VEEREAS also the said defendant, afterwards (to wit on the same day and year aforesaid, at sidstone aforesaid, in the County aforesaid, was indebted to the said plaintiff in the further sum of twenty pounds of like lawful money, for so much money by the suit plain it before that time lent and advanced to the suid defendant at his like special instance and request; and being so indebted, he the suid defendant in consideration thereof, afterwards (to wit) on the same day and year aforesaid, at Maidstone aforesaid, in the County aforesaid, undertook, and then and there faithfully promised the said plaintiti to pay to bim the said some of money last mentioned, whenever afterwards he the said defendant should be thereunto requested : AND WHEREAS also the said defendant, afterwards to wit) on the same day and year aforesaid, at Maidstone aforesaid, in the County aforesaid, was indebted to the said plaintiff in the further sum of twenty pounds of like lawful money, for so much money by the said plaintiff, before that time paid, laid out, and expended to and for the use of the said defendant at his like special instance and request ; and being so indebted, he the said defendant in consideration thereof, afterwards to wit on the same day and year aforesaid, åt Maidstone aforesaid, in the County aforesaid, undertook, and then and there faithfully promised the said plaintiff, to pay to him the said sum of money last mentioned, whenever afterwarda he the said defendant should be thereunto requested: AND WHEREAS also the said defendant, afterwards (to wit) on the same day and year aforesaid, at Maidstone aforesaid, in the County aforesaid, was indebted to the said plaintiff in the further sum of twenty pounds of like lawful money, for so much money by the said defendant before that time had and received to and for the use of the said plaintiff, and being so indebted, he the said defendant in consideration thereof, afterwards (to wit) on the same day and year aforesaid, at Maidstone aforesaid, in the County aforesaid, undertook, and then and there faithfully promised the said plaintiff to pay to him the said sum of money last mentioned, whenever afterwards he the said defendant should be thereunto requested : AND WHEREAS also the said defendant, afterwards (to wit) on the same day and year aforesaid, at Maidstone aforesaid, in the County aforesaid, acrounted with the said plaintiff of and concerning divers other sums of money from the said defendant to the said plaintiff, before that time due and owing, and then in arrear and unpaid ; And upon that account the said defendant, was then and there found to be in arrear and indebted to the said plaintiff in the further sum of twenty pounds of like lawful money; and being so found in arrear and indebted, he the said defendant in consideration thereof, afterwards (to wit) on the same day and year aforesaid, at Maidstone aforesaid, in the County aforesaid, undertook, and then and there faithfully promised the said plaintiff to pay to him the said sum of money last mentioned, whenever afterwards he the said defendant should be thereunto requested ; yet the said defendant not regarding his said several promises and undertakings so by him in manner and form aforesaid made, but contriving and fraudulently intending craftily and
subtilly to deceive and defraud the said plaintiff, in this respect hath not yet paid the said several sums of money or any part thereof to the said plaintiff, although the said defendant afterwards (to wit) on the same day and year aforesaid, and oftentimes afterwards at Maidstone aforesaid, in the County aforesaid, was requested by the said plaintiff to pay him the same; but the said defendant to pay the same, or any part thereof, hath hitherto altogether refused, and still doth refuse, to the damage of the said plaintiff of twenty pounds, and therefore he brings his Suit, &c.
I will not descant, sir, upon the absurdity of this form, every word of which is usual and common in actions brought for the recovery of any debt for goods sold, if the amount be above forty shillings. Professional men become so familiar with this proceeding, that their eyes are blind to the nonsense it contains; but I appeal not to those who have an interest in supporting these absurdities, but to the judgment of common sense. What good reason can there be for introducing into the bill of the plaintiff, a variety of grounds of complaint, which are entirely fictitious? The only reason that I am aware of is, that the attorney is paid according to the number of words of which the bill is composed.
But, sir, we will pass on. The answer of the defendant to this charge of the plaintiff, is in the following form.
“ And the said defendant, by Benjamin Spriggs his attorney, comes and defends the wrong and injury when, &c. and says that he did not undertake or promise in manner and form as the said plaintiff hath above thereof complained against him, and of this he the said defendant puts himself upon the country," &c.
This is termed the defendant's plea. If the plaintiff is desirous of trying the defendant's liability, he laconically replies to the defendant's appeal to “ the country"-" And the said plaintiff doth the like.”—This single instance of any thing like conciseness in the style of legal proceedings, concludes what are termed the pleadings. The plaintiff now gives the defendant a notice of trial, and at the same time delivers to his attorney what is termed the issue, that is, a fair copy of all the previous pleadings, of which the defendant must of necessity have had copies. The issue concludes with the following words.
" Therefore let a Jury thereupon come before our Lord the King at Westminster, on Monday next after eight days of the Purification, by whom, &c. and neither, &c. to recognize, &c. because as well, &c. the same day is given to the parties aforesaid at the same place.”
This most elegant and easily understood conclusion brings the cause into a state fit for trial. The day mentioned, Monday next after eight days of the Purification, is a day before the assizes or sittings at which the cause can be tried; and whether the trial is to take place in London, or in the Country, the direction to the jury is, that they are to be at Westminster. The sheriff is also directed by the following writ to cause the jury to be at Westminster at the before-mentioned day.
“ George the Fourth, by the Grace of God, &c. To the Sheriff of Kent, greeting. We command you that you canse to come before us at Westminster, on Monday next after eight days of the Purification, twelve free and lawful men of the body of your county, each of whom has ten pounds a-year at the least of lands, tenements, or rents, by whom the truth of the matter may be the better known, and who are in no wise akin either to James Thomson the plaintiff, or Charles Hodgson the defendant, to make a certain jury of the country between the parties aforesaid of a plea of trespass on the case, because as well the said James as the said Charles, between whom the matter in variance is, have put themselves upon that jury, and have there then the names of the jurors and this writ. Witness, Sir Charles Abbott, Knight, at Westminster, the twelfth day of February, in the seventh year of our reign.
Ellenborough and Markham." The reason for this writ has entirely vanished. Anciently all trials took place at Westminster, and the sheriff summoned the jury to go to Westminster, by that writ called the Venire. The distance which some of the jurors had to travel, caused it to be extremely inconvenient for them to attend, and in consequence the following writ of distringas was issued to compel their attendance.
“ George the Fourth, by the Grace of God, &c. To the Sheriff of Kent, greeting. We conmmand you that you distrain the several persons named in the panel hereunto annexed, jurors, summoned in our Court before us between James Thomson plaintiff, and Charles Hodgson defendant, by all their lands and chattels in your bailiwick, so that neither they nor any one by them do tay hands on the same, until you have another command from us in that behalf, and that you answer to us for the issues of the same, so that you have their bodies before us at Westminster on Wednesday next after fifteen days of Easter, according to the form of the statute in such case made and provided, to make a certain jury between the said parties of a plea of trespass on the case, and to hear their judgment thereupon of many defaults, and have then the names of the jurors and this writ. Witness, Sir Charles Abbott, Knight, at Westminster, the twelfth day of February, in the seventh year of our reign."
This writ, although it perhaps compelled the jurors to attend, did not lessen the inconvenience, which at last was so sensibly felt, that it produced the holding of assizes by the King's justices, and the trial of causés in every county. Still the old writs were retained, the only alteration being the introduction of the following words, immediately after the return of the distringas, “ or before our justices assigned to hold the assizes in and for the county of Kent, if they shall first come at Maidstone, in the said county, on Monday, the twenty-sixth day of March now next ensuing.” With this alteration, the practice respecting the writs to summon juries remains as it anciently was. The writs of venire and distringas, and all the obsolete practice of summoning the jurors to attend at Westminster, are still in form ́adhered to.
A relic of this old practice is also to be found in the record of Nisi Prius, which is a fair copy of the proceedings, and is taken down to the assizes for the information of the court, on the trial of the cause. At the conclusion are these words.
“ The 'jury between James Thomson plaintiff, and Charles Hodgson defendant, of a plea of trespass on the case, is respited before our Lord the King at Westminster, on Wednesday next after fifteen days of Easter, unless His Majesty's Justices assigned to take the Assizes in and for the County of Kent shall first come on Monday, the twenty sixth day of March, at Maidstone in the said county, according to the form of the statute in such case made and provided for default of the jurors, because none of them did appear. Therefore let the Sheriff have the bodies of the said jurors, to make the said jury between the parties aforesaid of the plea aforesaid accordingly, the same day is given to the parties aforesaid at the same place. And be it known, that the King's writ on record was delivered to the Under-Sheriff of the said county on the twelfth day of February, in this same term, before our Lord the King, at Westminster, to be executed according to law, at his peril."
Thus, sir, I have traced the progress of a suit for the recovery of a common debt, from its commencement, until it is in a condition to be tried. The costs of the plaintiff's share of the various proceediogs I have noticed amount to about 121.--The costs of a trial, and the costs
subsequent to that period, are of course considerable, but very few causes for smal debts are tried they are mostly settled at some of the intermediate stages, either by the defendant taking the benefit of the insolvent act, or making some arrangement for payment. In the first of these cases, the amount of the costs falls upon the plaintiff, who finds his original loss doubled or tripled; in the latter, the honest but necessitous, defendant is compelled to pay forty or sixty shillings for every pound of his original debt. The frequent occurrence of such cases has caused many men to turn their attention to some mode by which justice might be obtained at a less costly price, and various proposals have been brought forward for the erection of new Courts, or the entargement of the powers of those now existing for the recovery of debts' under 40s. To all these schemes there have been many objections. The erection of new Courts is for the most part a matter of doubtful policy, calculated to produce much disarrangement and confusion; it breaks in upon the established forms of the constitution, and introduces innovations which it is extremely difficult to limit. But, sir, I think it will be seen, that without at all infringing upon the true and correct principles which guide the administration of justice in our ancient Common Law Courts—without depriving them of any useful appendage-without detracting from their weight and authority--much might be done towards rendering the practice of the law more simple, and therefore less expensive.
If the foregoing statements are, as I consider them, incontrovertible, then, sir, there are many of the forms now adhered to in the practice of our Courts, which are in themselves useless, forms suited to another state of society, and originally intended to effectuate purposes which have become obsolete. Why may not these forms be relinquished? Why should the law alone be condemned to appear ridiculous? It would be as reasonable to decorate a Judge, who ought to be the personification of wisdom and gravity, with the cap and bells of a fool.
There are amongst us some, whose extreme reverence for antiquity displays itself in various fantastic shapes; but no one, I think, will be found to advocate the retention of these useless, these spiritless forms. We regard with curiosity, and preserve with fondness, all monuments of ancient art; we venerate the wisdom of our ances. tors, and delight to investigate their- peculiar manners; but our curiosity is satisfied with mere enquiry, no one dreams of reviving their by-gone peculiarities, or ventures to adopt their comfortless barbarities, in preference to the refined customs of a more highly civilized state of society. Were a Don Quixote to sally forth into our streets cased in the panoply of an ancient knight, the world would denounce him as insanewhis adherence to obsolete customs would be regarded as a proof of madness, and all our veneration for antiquity would not preserve him from ridicule and insult. A similar fate would attend every one, who, in any other manner, outraged the ordinary customs of society as at present constituted. Is it reasonable then that the law, which its panegyrists describe as the “ perVOL. 1.
fection of reason," should be rendered ridiculous by the manner in which common sense must be outraged before we can obtain its benefits? The practice of the law is in many cases several centuries behind the condition of the subject, who, in claiming its protection, finds himself wafted into a region haunted by the shades of his ancestors, many of whom mislead his footsteps, and bar up the avenues to JUSTICE
The absurdity of these forms is not their only fault; in many cases they are attended with consequences extremely pernicious. It not unfrequently happens, that a suitor finds his costs increased, and his cause impeded, if not altogether defeated, by the omission of some of the requisites which these ancient forms prescribe. Such will always be the case when the reason of a form has become obsolete. Whatever is grounded in sonie apparent and existing necessity, will seldom be departed from; but to adhere to an ancient form, the life of which is not only extinct, but even its former existence become a fact which antiquarian skill is necessary to discover, will always be difficult, and consequently often defective.
Another objection against these forms is, that they much increase the expense of proceedings, and on that account press very heavily upon those who seek to recover small debts. I have stated, that the expense of the proceedings set forth, is about 121. If the course which I shall venture to suggest were adopted, the expense would be reduced to less than one-half that sum-certainly a very important reduction, and one, that if found to be successful, might open the way for still farther improvement. It will be remarked, that I limit my present proposal to small debts--say under 10l.
The suggestions I venture to make are the following:
1st. That the latitat be altered by striking out all the obsolete parts, and turning it into a mere command to appear by attorney in the Court of King's Bench to answer the complaint of the plaintiff.
2nd. That the declaration be confined to the mere cause of action, and that it shall not contain irrelevant and unnecessary counts—this will in most cases have the effect of reducing it to about six folios, instead of eighteen.
3rd. The pretended bill, which is always charged for, ought not to be allowed in costs in those cases in which it is not filed.
4th. I consider the delivery of the issue entirely unnecessary; I have explained, in a former page, that it is merely a copy of pleadings which the defendant is already in possession of.
5th. I would suggest the abolition of the old writs of venire and distringas, and the substitution of one writ made out in accordance with the fact.
And Oth. That a plaintiff be not hindered or defeated in his suit by any inattention to form which does not mislead or prejudice the defendant.
In support of these suggestions, I would remark that they are simple---easy to be understood.--and that their effects and operations may be clearly anticipated; that by their means not only will the