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LONDON, JANUARY 2, 1847.
| 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; forja 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 inuch 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. VOL. X. love
(Reg. v. The Inhabitants of Anderson, p. 479), three « The parties might, if they chose, agree beforehand objections were taken to the grounds of appeal, and the as to the points in dispute, and bring them ready sessions held the objections to be good, but permitted drawn up for the judge's signature. In short, instead the appellants to prove the facts upon which they of a declaration which tells the defendant nothing, relied, and confirmed the order, subject to the opinion and a bill of particulars to which he looks for informaof the court, which, after hearing counsel in support of tion,-a bill of particulars would be sufficient; and the objections, decided against them, without calling on instead of a demurrer being drawn out on paper, and the other side; the Chief Justice saying, “ It is true the points intended to be argued stated in the margin, that there have been many cases in which some very to point the attention of the judges to the real issue of minute objections have been taken, but some of those in the case, the statement of the points would be enough, the present case are such as could hardly be discovered to the infinite relief of the suitor and the manifest 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 forinal 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 menceinent 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 ou 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 y, Cox, 11 Mee. & W. fidence in their own judgment to refuse to reserve any 45), and which, at the trial, it would have been inquestion 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 was described as one kind of breach of duty instead of counsel would have ventured to raise the objections; or as another, (Harrison v. Matthews, 10 Mee. & W. if he had had the courage to do so, they would have - 768); as a debt instead of a damage, (the claim being been at once finally disposed of. We have before this for money only); or because a plea was bad for dupliurged the necessity of an alteration in these courts. city, (Dietrichsen v. Giubilei, 14 Mee. & W. 845); or It is now becoming universally acknowledged, and no for any other mistake in the unspeakably absurd thing but the powerful interest which is enlisted on jargon, in which the lawyers of former days displayed their side could any longer preserve them.
their ignorance of jurisprudence, and the wantonness
of their awkward ingenuity. But the professed purReview
pose 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 A Letter to the Lord Chancellor on the Reform of the Law.
• alive to avert it, society sooner or later must prepare By JOHN GEORGE PHILLIMORE. (Ridgway.] 1 itself to undergo. Instead of two statements in tres
The gentleman who writes this pamphlet, designating pass, one of which is almost always purposely misunhimself as plain “ John George Phillimore,” without derstood, and therefore leads to a new assignment, as the appendage of the word “barrister at law,” is, we be- it is called, the fruitful mother of numberless iniquilieve, a barrister of some standing. Judging him from ties), one interview, in which the date of the charge or this production, by which only we know him, we should charges meant to be relied upon was distinctly given, say that he is a man of much reading, of some eloquence, would be sufficient. Let any one cast his eye over the but of much violence; and these qualities he has mani- reports, ancient or modern, and see whether, if such a fested in his pamphlet, by abundance of quotations from system were to prevail, the most revolting folly and Greek and Latin authors, and from the fathers of English flagrant injustice would not be repeatedly avoided. literature; by a few passages which would sound very “In most cases in all cases of ordinary contractmagnificent on the hustings; and by attacks upon the such an arrangement would be made without the least English system of common-law pleading, which savor difficulty. Complicated cases would of course arise, more of the heat of an uninformed youth than of the and be much insisted upon by the bigotted enemies of calm censure of a wise and learned man. Ex gr.: “The all improvement; but these cases would not only be facts,” says Mr. Phillimore, “ stated in the pages of rare, but would, which is the great object of juris
special pleading, which are the disgrace of our courts, prudence, be decided, after more or less examination, "might be stated in ninety-nine cases out of a hundred upon the merits, and it would be impossible for the • in a quarter of a page of foolscap paper, always in a mistake of a pleader to deprive a man of his unques
page. The judge, before whom the parties went intionable right. For this (iterumque iterumque mothe first instance, should, if he thought the case re- nebo) is the grand question. In every instance in • quired it, have power to grant a week's delay; for which a formal objection prevails, that has happened
further delay, application should be made to the which, if it were always to happen, would destroy $d court above: where the facts were allowed, and the ciety. Wheresoever an objection that could only be law disputed, the point should be stated as it now is, taken on special demurrer, as it is called, prevails, on the margin of a demurrer, and referred to the con- reason has been shocked, justice violated, and a citizen sideration of the court. This would put an end to the deprived of his right as effectually as if he had claimed possibility of surprise, or of any technical objection. lit before a judge bribed by his antagonist.
“ It is in vain to attempt to extenuate such evils. printed without a name, be traced rather to the heated Example, the great argument of civil life, demon- atmosphere of a general debating society, than to the
strates their enormity. Let us suppose a judge unfet- calm and serene precincts of a grave, and, we believe, "tered by any principle of law-a Roman Prætor for really able lawyer's chambers? That form may be too instance, in the early ages of the Commonwealth much worshipped, none deny. That form is still too would Verres himself have dared to inscribe on his much petted in special pleading, is not perhaps to be tablet such rules of decision as those by which our re- denied; but this sort of wholesale demand for sweepports are now disfigured ?”
ing 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 lisPrætor 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 seemns, 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 decide 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 par'to 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, com pels 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 in'grown 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 it by the plaintiff's pleadings, he might think the that the weak is, in a court of law, as well as out of point so clear as not to be worth preparing himself with it, the victim of the strong>I will take care that the proof. If the forms of pleading did not put it in his rich man has at least a chance of getting anything he power to force the plaintiff, by a preliminary objection, has a mind to ask for from the poor-I will take care to say whether he intends to prove that point or not, that justice is no sure protection, and injustice no cer- great injustice might, whether by accident or whether "tain cause of defeat.' And can the deformity of such by intentional surprise, be worked against the defend"a state of things be exaggerated ? Drawing lots-the ant. It would be puerile to multiply instances to shew "inspection of a chicken's stomach-the flight of a bird that it is important, that when men go before a court '-the neighing of a horse-nay, trial by battle—all as litigants, they should state definitely what are the these ways of decision, give justice at least an equal legal rights that they claim; and it would be equally chance. The caprice of a king-the passion of a woman puerile to argue further to shew that the merits in issue "—the will of a priest-do not always preclude all pos- are best got at, not by allowing litigants to diverge
sibility of obtaining it. Bridoye, in the fine satire of into endless gossip about their wrongs, as minor liti• Rabelais, flings dice to know how he must decide; but gants do daily in police offices, but by compelling them
with us the dice are loaded, in favour of chicane- to ascertain as accurately as may be what are their "-fraud has an advantage."
rights, or supposed rights, actually in issue, and to Bearing in mind that the pamphlet is professedly allege all they insist upon, and no more. an argument against special pleading, and that much Mr. Phillimore, in his antipathy to special pleadmay be allowed to the warmth that the mere fact of ing, has fallen into a very common error, that of supattacking will always generate in the attacking party, posing that equity abhors forms. “Why,” says he, yet is not the language we have quoted a little too (p. 32), “should any forms be requisite in common strong and inflated for the demerits of the unfortunate Jaw more than in equity ?" If Mr. Phillimore will victim?_and would not its authorship, if it werel take the trouble to refer to a book a little known,
called Daniell's Practice, and to another, also a little Lord Tenterden, Mr. Justice James Parke, Mr. Jusknown, called Mitford's Pleading, he will find in the tice Taunton, Mr. Justice Littledale, and Mr. Justice former (vol. 1, sect. 5), forty pages on the “form of a Bayley; in short, by lawyers as able as ever adorned bill in equity," and in vol. 2, 213 pages on demurrers the bench of justice in this country. A judgment and pleas; and in the latter work he will find, out of pronounced on this last occasion contains as strong an 332 pages, 200 devoted to demurrers and pleas. And argument in favour of a code as ever was published if he will peruse those works, he will find, that in by Romilly or Bentham. Let us look,' said Baron equity, although, from the fact that every suit extends Parke, 'to the course of decisions, since Dickson v. to complete adjudication upon the whole subject-matter · Cass.' (But what is a man to do who cannot look to of litigation, pleadings may be more licentious than at the course of decisions ? and who, if he could turn to common law, yet the same broad principle pervades a code, might find something to guide him instead of equity pleadings which influence special pleading, viz. being told to hunt through thirty or forty volumes of that the litigants must let each other know all that 'miscellaneous matter).". 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
Court Papers. 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
Rolls Court. the existing state of the rules of pleading that may be amended; and while public attention would, perhaps,
Before the Right Hon. the MASTER OF THE ROLLs, at
Westminster. never be called to the evil by a moderate and philosophical attempt at pointing out details of error, it will
Monday .... Jan. 11 Motions. be aroused by a daring and earnest onslaught such as
Tuesday........ 12 Petitions in General Paper. Mr. Phillimore's. We must also do him the justice to
Wednesday ..... 137
Thursday say, that in some of his observations upon the insuffi
Friday ......... ciency of the law itself to meet the wants, particularly
Pleas, Demurrers, Exceptions, Causes,
Saturday ....... of the poorer classes, he is calling attention to great and
and Further Directions.
Monday ........ crying evils; as, for instance, when he points out that
Tuesday....... to the poor the law of divorce and separation is inac- Wednesday 20) cessible. (P. 21, notis).
21 Motions. Further, we will add, that Mr. Phillimore has some Friday ........ 22 good observations on the evil which results from the Saturday .......
Pleas, Demurrers, Causes, Further Di.
25 } conflict between the supposition that our judges merely | Monday .........
rections, and Exceptions. pronounce the law, and the fact that they make it; ( Tuesday:..... and we shall conclude by extracting a passage on this
this Wednesday .. 27 subject, in which the author seems to manifest a sound
| Thursday .......
28 Motions. Friday .....
29 and thoughtful spirit of reform, which we have no
Saturday ....... 30 Petitions in General Paper. doubt is his proper characteristic, when not irritated Mond
rritatea | Monday .... Feb. I Motions. by the shadow of special pleading.
Short Causes, Consent Causes, and Consent Petitions every “ The next point,” he says, “is judicial legislation.
: Saturday at the sitting of the court. Although much has been written on this subject, I
bject, | Notice.--Consent Petitions must be presented, and copies ' think the argument may be contracted within a very left with the Secretary, on or before the Thursday preceding narrow compass. No lawyer can deny that the judges the Saturday on which it is intended they should be heard. possess, and exercise perpetually the power of making law; that in a vast number of cases which come be
Court of Queen's Bench. .fore them, they may decide either way without injury to their reputation; that their decisions are not only
NEW TRIALS law, but are then always and essentially what law REMAINING UNDETERMINED AT THE END OF THE SIT. ought rarely (and, perhaps, even in civil matters, not
TINGS AFTER MICHAELMAS TERM, 1846. • once a century) to be-retrospective. For instance, STANDING FOR JUDGMENT. | Devon-Damerello. Protheroe at one time it was held by the courts, that no person | Willoughby v. Willoughby
Schank u. Sweetland ought to become a proprietor of bills of exchange, Brooks v. Bockett
Cornwall—Marshall v. Hicks under circumstances which would excite the suspi- | Same v. Same
Som’set-Doed. Earlof Egrecion of a prudent man; and that if it did so, it flung Belcher o. Gummow
mont o. Williams upon him the burden of a most difficult justification; Rogers v. Brenton
Bristol - Addison v. Gibson this continued to be the law for several years; all at Doe d. Earl of Egremont o. ' HILARY TERM, 1846. once this doctrine was overthrown, not by an act of Langdon
| Midd.—Hunter o. Caldwell · Parliament, the operation of which would only have Musgrove v. Emerson
» Doe d. Tebbutt & ors. 'been prospective, but by a decision, the effect of which,
Hope v. Harman
9. Brent & ors. of course, was retrospective, as it proclaimed what the
Dobson v. Blackmore
Lond.—Whyte o. Burnby law had always been, and therefore changed the
Doe d. Earl of Egremont o.
Bond o. Nurse
Courtenay character of all contracts made within six years before
Turner o. Ambler
Doe d. Lors Down v. Thomp. 1 Reg. o. Kensington that decision. Therefore, a person, who, on a point
| Midd.-Lovelock v. Franklyn affecting more or less every member of the mercan
Same o. Same tile community, had acted on the faith of the former Doe d. Goody v. Carter
EASTER TERM, 1846. law, would have found, perhaps to his ruin, that he Doe d. Jenkins v. Davies
Midd.-Pemberton v. Vaughan was mistaken. I put this case among thousands, be- / Wilkinson v. Haygarth
, Thompson v. Pettitt cause it is one which spreads its influence over so wide Smith v. Hopper
Vincent v. Dore "a surface, and therefore illustrates in so plain a man
Lond.-Curtis e. Pugh Reed o. Hopper
De Freist. Littlewood ner the evils of the system. So, in the very last vo
Tucker t. Clarksoa (lume of Exchequer Reports, the case of Frith v. Ro- | MICHAELMAS TERM, 1845.
is Reg. r. Parker therham, (15 Mee. & W. 45), was decided direct | Durham-Hinde o. Raine | Kent-Doe d. Jacobs o. Pail. against the authority of a former case, Dickson v. Devon-Mayor, &c. of Exeter
lips • Cass, (1 B. & Adol. 343), which last was decided by!
'v. Harvey & an. | Sussex-Standon r. Chrismus