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No. 521-VOL. X.

JANUARY 2, 1847.

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not seem to be the case. Term after term the Crown Paper in the Queen's Bench presents its usual list of MUCH dissatisfaction is often expressed at the state of poor-law cases, and forensic ingenuity is racked to the law with respect to poor-law appeals. It is said, and find points which will bear the shadow of an argument. truly, that the whole is now so involved in technicali- Forms which have been in use for more than a centies and niceties of special pleading, that rarely is the tury, and have met with the approval of the ablest settlement of a pauper decided upon the merits, or, if | minds, are attacked with the energy of despair*, and it 80, not until after the contending parishes have incurred seems with many to be a matter of self-gratulation to great and useless expenses about matters of form. For discover a new point, no matter whether it be good or this, the Court of Queen's Bench is too often unjustly bad, capable of being sustained on argument, or certain blamed. We are not going to deny that that court has, to be summarily rejected. We may appear to speak by the mode in which it has carried out the enactment harshly, but we appeal to the Bar generally whether of the New Poor Law Act respecting examinations, and we are not right. The reports will testify for us; for the disposition it has for years shewn to scan, in the no one who has examined them can fail to perceive strictest manner, the proceedings of magistrates, fos- that in poor-law cases objections are raised of a natered a somewhat mischievous habit of thought and ture frivolous beyond example in any other branch of practice upon these subjects; but we have long been in- the law. We will take the lately-issued number of clined to think that the Bar is as much to blame as the the New Sessions Cases, (vol. 2, part 5), the examinacourt, for the lavish expenditure incurred by parishes in tion of which has suggested to us to make the foregoing the removal of paupers. The objections that have been observations. In that number, five settlement cases are successfully taken to orders and examinations have reported; but one of them, (Reg. v. Walbottle, 442), created an appetite for further discoveries, and it has turning upon the construction of a pit-bond, does not become the ambition of gentlemen practising at sessions come within the class we allude to. not so much to protect the interests of their clients as to In the first, then, of the four, (Reg. v. Inhabitants of distinguish themselves by astuteness in finding flaws Northowram, p. 437), there was but one objection taken, which no one ever before dreamed of. But as every objec- which failed, and the order of sessions was confirmed; tion, when discovered and established, is carefully and Lord Denman, in the course of the argument, observing, extensively reported, and is of course, except in cases of that it was much to be regretted that the sessions gross ignorance or carelessness, avoided for the future, it should have reserved for the court a question which must happen that the objections to orders and examina- they were fully competent to decide for themselves. tions really sustainable will become every term more In the next, (Reg. v. The Inhabitants of Watford, p. and more reduced in number, and ought finally not to | 460), four objections were taken to the examinations, appear before the courts at all. One might expect, that, which were overruled at the sessions, but a case was like other forms of legal proceedings, poor-law orders granted. Upon coming to the Queen's Bench, the whole and examinations would gradually assume a certain of the objections were again overruled. In the next, shape, and if ever departed from, the mistake would *Reg. v. Recorder of King's Lynn, 2 New Sess. Cas. 334; be at once acknowledged and corrected. But this does | 10 Jur. 640.

"The parties might, if they chose, agree beforehand as to the points in dispute, and bring them ready 'drawn up for the judge's signature. In short, instead of a declaration which tells the defendant nothing, and a bill of particulars to which he looks for informainstead of a demurrer being drawn out on paper, and 'the points intended to be argued stated in the margin, to point the attention of the judges to the real issue of the case, the statement of the points would be enough, to the infinite relief of the suitor and the manifest

(Reg. v. The Inhabitants of Anderson, p. 479), three objections were taken to the grounds of appeal, and the sessions held the objections to be good, but permitted the appellants to prove the facts upon which they relied, and confirmed the order, subject to the opinion of the court, which, after hearing counsel in support oftion,-a bill of particulars would be sufficient; and the objections, decided against them, without calling on the other side; the Chief Justice saying, "It is true that there have been many cases in which some very minute objections have been taken, but some of those in the present case are such as could hardly be discovered without a microscope; and though some of the distinc-benefit of substantial justice. It is very common for tions in former cases may appear fine-drawn, I believe, if 'the judges to complain that the points intended to be re-considered, all those decisions would be maintained." argued are not specifically stated, but that they are In the remaining case, (Reg. v. The Inhabitants of left to collect them from the demurrer itself, at a conSt. Paul, Covent-garden, p. 508), four objections were 'siderable cost of time and trouble. Now, if it is not taken to the order of removal, as to which, after hear- 'necessary, for the sake of the judges, that the demuring the counsel in support of them, the court said, rer should be formally drawn out, what purpose does "The three last objections are too trivial to require the formal statement answer? to whom is it intended comment: the first requires some consideration, prin- that it should give information? what object does it cipally on account of the great authority of former effect, that would not as completely be accomplished cases. And after consideration, the first was also over- by the statement, to which the demurrer is, for all ruled; and, therefore, of the objections taken in these practical purposes, except oppression and expense,— four cases, not one was ultimately sustained. Are we a mere appendage? To be sure, if this system were not justified, then, in the remarks we made at the com- adopted, nobody would be obliged to pay money he mencement of this article? But the cases we have re- did not owe, or lose money due to him, because his ferred to give rise to another observation. They shew pleader had put this he is ready to verify,' instead of to our mind conclusively the utter inefficiency of the this he prays may be inquired of by the country;' courts of quarter sessions to deal with such matters. because no averment had been made of the matter not In the first, second, and fourth cases, where their orders' necessary to sustain the action, (as in Hayter v. Moat, were confirmed, they ought to have had sufficient con- 2 Mee. & W. 56, and Smith v. Cox, 11 Mee. & W. fidence in their own judgment to refuse to reserve any 45), and which, at the trial, it would have been im question for the Queen's Bench; and in the third, they pertinent to prove; or because, though a good cause of held objections to be good, which were manifestly fri-action was stated clearly, formally, and correctly, it volous. Before a competent tribunal, probably no counsel would have ventured to raise the objections; or if he had had the courage to do so, they would have been at once finally disposed of. We have before this urged the necessity of an alteration in these courts.city, (Dietrichsen v. Giubilei, 14 Mee. & W. 845); or It is now becoming universally acknowledged, and nothing but the powerful interest which is enlisted on their side could any longer preserve them.

Review.

A Letter to the Lord Chancellor on the Reform of the Law.
By JOHN GEORGE PHILLIMORE. [Ridgway.]

The gentleman who writes this pamphlet, designating himself as plain "John George Phillimore," without the appendage of the word " barrister at law," is, we believe, a barrister of some standing. Judging him from this production, by which only we know him, we should say that he is a man of much reading, of some eloquence, but of much violence; and these qualities he has manifested in his pamphlet, by abundance of quotations from Greek and Latin authors, and from the fathers of English literature; by a few passages which would sound very magnificent on the hustings; and by attacks upon the English system of common-law pleading, which savor more of the heat of an uninformed youth than of the calm censure of a wise and learned man. Ex gr.: "The facts," says Mr. Phillimore, "stated in the pages of special pleading, which are the disgrace of our courts, might be stated in ninety-nine cases out of a hundred in a quarter of a page of foolscap paper, always in a page. The judge, before whom the parties went in the first instance, should, if he thought the case re< quired it, have power to grant a week's delay; for further delay, application should be made to the court above: where the facts were allowed, and the law disputed, the point should be stated as it now is, C on the margin of a demurrer, and referred to the consideration of the court. This would put an end to the possibility of surprise, or of any technical objection.

was described as one kind of breach of duty instead of as another, (Harrison v. Matthews, 10 Mee. & W. 768); as a debt instead of a damage, (the claim being for money only); or because a plea was bad for dupli

for any other mistake in the unspeakably absurd 'jargon, in which the lawyers of former days displayed their ignorance of jurisprudence, and the wantonness of their awkward ingenuity. But the professed purpose of special pleading would be attained, and this abundant source of iniquity and oppression would be 'choked up-a calamity which, as Lord Eldon is not alive to avert it, society sooner or later must prepare ' itself to undergo. Instead of two statements in trespass, one of which is almost always purposely misunderstood, and therefore leads to a new assignment, as it is called, the fruitful mother of numberless iniquities), one interview, in which the date of the charge or charges meant to be relied upon was distinctly given, 'would be sufficient. Let any one cast his eye over the ' reports, ancient or modern, and see whether, if such a 'system were to prevail, the most revolting folly and flagrant injustice would not be repeatedly avoided. "In most cases-in all cases of ordinary contractsuch an arrangement would be made without the least difficulty. Complicated cases would of course arise, and be much insisted upon by the bigotted enemies of 'all improvement; but these cases would not only be rare, but would, which is the great object of jurisprudence, be decided, after more or less examination, upon the merits, and it would be impossible for the mistake of a pleader to deprive a man of his unquestionable right. For this (iterumque iterumque monebo) is the grand question. In every instance in 'which a formal objection prevails, that has happened which, if it were always to happen, would destroy society. Wheresoever an objection that could only be taken on special demurrer, as it is called, prevails, deprived of his right as effectually as if he had claimed reason has been shocked, justice violated, and a citizen 'it before a judge bribed by his antagonist.

"It is in vain to attempt to extenuate such evils. Example, the great argument of civil life, demon'strates their enormity. Let us suppose a judge unfettered by any principle of law-a Roman Prætor for 'instance, in the early ages of the Commonwealth'would Verres himself have dared to inscribe on his 'tablet such rules of decision as those by which our re'ports are now disfigured?"

printed without a name, be traced rather to the heated atmosphere of a general debating society, than to the calm and serene precincts of a grave, and, we believe, really able lawyer's chambers? That form may be too much worshipped, none deny. That form is still too much petted in special pleading, is not perhaps to be denied; but this sort of wholesale demand for sweeping away all form, and for deciding everything, as it is And again, "Was it not one main duty of the Roman termed, upon the merits, is mere jargon, which, if lis'Prætor to release the people from the intolerable bur- tened to, would, in the words of our author himself, 'den of forms, unmeaning and obselete? Would any destroy society. We use the expression," deciding on 'judge-I will not say any of those who now preside the merits, as it is termed," because in that expression, in our courts of justice, and who, by their learning and of deciding on the merits, is wrapped up the fallacy 'probity, mitigate to so great a degree the frightful that pervades the whole of Mr. Phillimore's argument. 'evils of the system,-but would any judge, so long as He seems, in common with all other the enemies of the faintest spark of equity or reason found refuge in forms of pleading, to suppose, that if parties were not his breast, decide a case, if it were in his power to de- tied down to any forms for expressing their legal de'cide it otherwise, as the cases I have cited are decided? | mands, and their grounds of legal resistance to demands, or would he send away a plaintiff because his attorney that of necessity the merits must always come out; brought his action on a promise to fulfil an award, in- and to forget the enormous injustice that might be, stead of on the award itself; or condemn a defendant and of course, therefore, would be committed, if parto pay an unjust demand, because, in his plea (not ties were permitted to state their claims in one way, drawn by himself) two reasons are stated why his and try them in another. Let it be ever recollected 'adversary's claim is unfounded, instead of one? If a that the principle upon which set forms of pleading 'judge, who could help it, was to decide in such a man- are advocated and sustained is, that a party claiming a ner, would he not merit the contempt and execration right shall tell his adversary what it is that he has to of his species? Is there any anecdote of a corrupt contest, so that the adversary may not, on coming into judge transmitted to us-has Cicero preserved any de- court, be surprised by finding that he has prepared cision of Verres himself-more ludicrously unjust in himself to defend what was never going to be attacked, the eye of calm dispassionate reason than such judg- and has left unprotected the very point that is to be 'ments which, as I have shewn, the law, as it now attacked. Where it is said, that a judgment on a quesstands, compels our judges to pronounce? Can any- tion of form is wholly beside the merits, the assertion thing be said or imagined worse of any judicial sys- is only true in this respect, that it does not go to the tem than that, in a vast number of instances, the general merits; but it does decide that particular merit causes referred to the tribunals of the country are de- on which the party has thought fit to proceed; and in cided without any reference to their merits? Is it to almost all cases the form neglected to be observed is the give effect to such quibbles as these, that, as Mr. symbol of some substantial merit, the absence of which, Hume tells us, all the vast apparatus of government if the case were gone into upon the general merits, is instituted? Is it to such a distribution of justice as would cause the defeat of the party on the merits as this, that kings, parliaments, fleets and armies, offi- effectually as its non-allegation will upon a preliminary cers of the revenue, ambassadors, and privy council- objection to the pleadings, and the non-allegation of lors,' are subordinate? To enable fraud and rapine which, if it really exists, would tend to that surprise 'to triumph in countless instances-to reason upon pre- upon the adversary which it is the very essence and cedents established in the dark ages to rock the object of forms of pleading to prevent. Take, for ingrown man in the cradle of the child-to uphold such stance, the simple case of an action brought for breach senseless fictions as the actions of trover and ejectment, of a covenant, the breach consisting in not executing " the very names of which prove the barbarity of their a deed, and no allegation that the deed was tendered 'inventors, are founded upon-to increase the advan- for execution. It may be that the deed was not, in tages of the rich, and to exasperate the miseries of the fact, properly tendered for execution, and the defendant poor? Give me matter and motion,' said Descartes, might fail in his proof upon other points, and have and I will make a world.' 'Give me special plead-proof upon that; but if his attention was not called to 'ing, said the Norman lawyer, and I will take care 'that the weak is, in a court of law, as well as out of it, the victim of the strong-I will take care that the rich man has at least a chance of getting anything he 'has a mind to ask for from the poor-I will take care that justice is no sure protection, and injustice no cer'tain cause of defeat.' And can the deformity of such a state of things be exaggerated? Drawing lots-the inspection of a chicken's stomach-the flight of a bird -the neighing of a horse-nay, trial by battle-all these ways of decision, give justice at least an equal chance. The caprice of a king-the passion of a woman -the will of a priest-do not always preclude all pos'sibility of obtaining it. Bridoye, in the fine satire of 'Rabelais, flings dice to know how he must decide; but with us the dice are loaded, in favour of chicane'-fraud has an advantage."

Bearing in mind that the pamphlet is professedly an argument against special pleading, and that much may be allowed to the warmth that the mere fact of attacking will always generate in the attacking party, yet is not the language we have quoted a little too strong and inflated for the demerits of the unfortunate victim?—and would not its authorship, if it were

it by the plaintiff's pleadings, he might think the point so clear as not to be worth preparing himself with proof. If the forms of pleading did not put it in his power to force the plaintiff, by a preliminary objection, to say whether he intends to prove that point or not, great injustice might, whether by accident or whether by intentional surprise, be worked against the defendant. It would be puerile to multiply instances to shew that it is important, that when men go before a court as litigants, they should state definitely what are the legal rights that they claim; and it would be equally puerile to argue further to shew that the merits in issue are best got at, not by allowing litigants to diverge into endless gossip about their wrongs, as minor litigants do daily in police offices, but by compelling them to ascertain as accurately as may be what are their rights, or supposed rights, actually in issue, and to allege all they insist upon, and no more.

Mr. Phillimore, in his antipathy to special pleading, has fallen into a very common error, that of supposing that equity abhors forms. "Why," says he, (p. 32), "should any forms be requisite in common law more than in equity?" If Mr. Phillimore will take the trouble to refer to a book a little known,

'Lord Tenterden, Mr. Justice James Parke, Mr. Justice Taunton, Mr. Justice Littledale, and Mr. Justice Bayley; in short, by lawyers as able as ever adorned the bench of justice in this country. A judgment pronounced on this last occasion contains as strong an argument in favour of a code as ever was published by Romilly or Bentham. Let us look,' said Baron Parke, to the course of decisions, since Dicksm v. Cass.' (But what is a man to do who cannot look to 'the course of decisions? and who, if he could turn to a code, might find something to guide him instead of being told to hunt through thirty or forty volumes of miscellaneous matter)."

Court Papers.

called Daniell's Practice, and to another, also a little known, called Mitford's Pleading, he will find in the former (vol. 1, sect. 5), forty pages on the "form of a bill in equity," and in vol. 2, 213 pages on demurrers and pleas; and in the latter work he will find, out of 332 pages, 200 devoted to demurrers and pleas. And if he will peruse those works, he will find, that in equity, although, from the fact that every suit extends to complete adjudication upon the whole subject-matter of litigation, pleadings may be more licentious than at common law, yet the same broad principle pervades equity pleadings which influence special pleading, viz. that the litigants must let each other know all that they respectively set up as rights; and, if they do not, may be turned round and defeated in the point of form. While, however, we censure the exaggeration of Mr. Phillimore's Strictures on Pleading, we must not omit to say, that his observations may not be without EQUITY SITTINGS, HILARY TERM, 10 VICT. good effect, because there is undoubtedly much in the existing state of the rules of pleading that may be amended; and while public attention would, perhaps, never be called to the evil by a moderate and philosophical attempt at pointing out details of error, it will be aroused by a daring and earnest onslaught such as Mr. Phillimore's. We must also do him the justice to say, that in some of his observations upon the insufficiency of the law itself to meet the wants, particularly of the poorer classes, he is calling attention to great and crying evils; as, for instance, when he points out that to the poor the law of divorce and separation is inaccessible. (P. 21, notis).

Further, we will add, that Mr. Phillimore has some good observations on the evil which results from the conflict between the supposition that our judges merely pronounce the law, and the fact that they make it; and we shall conclude by extracting a passage on this subject, in which the author seems to manifest a sound and thoughtful spirit of reform, which we have no doubt is his proper characteristic, when not irritated by the shadow of special pleading.

"The next point," he says, "is judicial legislation. Although much has been written on this subject, I think the argument may be contracted within a very narrow compass. No lawyer can deny that the judges possess, and exercise perpetually the power of making law; that in a vast number of cases which come be'fore them, they may decide either way without injury to their reputation; that their decisions are not only law, but are then always and essentially what law " ought rarely (and, perhaps, even in civil matters, not once a century) to be-retrospective. For instance, at one time it was held by the courts, that no person ought to become a proprietor of bills of exchange, under circumstances which would excite the suspi'cion of a prudent man; and that if it did so, it flung upon him the burden of a most difficult justification; 'this continued to be the law for several years; all at once this doctrine was overthrown, not by an act of 'Parliament, the operation of which would only have 'been prospective, but by a decision, the effect of which, of course, was retrospective, as it proclaimed what the law had always been, and therefore changed the character of all contracts made within six years before that decision. Therefore, a person, who, on a point affecting more or less every member of the mercan'tile community, had acted on the faith of the former law, would have found, perhaps to his ruin, that he ' was mistaken. I put this case among thousands, be6 cause it is one which spreads its influence over so wide < a surface, and therefore illustrates in so plain a man" ner the evils of the system. So, in the very last vo'lume of Exchequer Reports, the case of Frith v. Rotherham, (15 Mee. & W. 45), was decided direct against the authority of a former case, Dickson v. 'Cass, (1 B. & Adol. 343), which last was decided by

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