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appointment of the new judges was entrusted. He appears to have entertained no idea that the new tribunals would ever become of much more importance that the petty courts of request which had preceded them; and accordingly, proceeding on that supposition, and profoundly respecting vested interests, he conceived that the judges of the abolished petty courts had a stronger claim to the lucrative and important judgeships of the new County Courts than any of the most accomplished and learned candidates. In consequence of this mistaken view, several of these judges have turned out to be very unequal to the onerous and responsible duties cast upon them by successive statutes. As a body, they have acquitted themselves most creditably, for the exceptions have not been many. Nevertheless it cannot be supposed that the new courts have attracted that degree of confidence and respect which they would certainly have received had Lord Cottenham, with better judgment, appointed in the first instance the ablest men he had the power of selecting. Still the fact is clear, that notwithstanding this original defect in the appointments, the County Courts have effected a revolution in the practical proceedings of English law. Not only almost every description of dispute within the prescribed limits is now settled within the precincts of these courts, but it often happens that bona fide claims of a higher amount are squeezed down by the claimant to the concentrated form of fifty pounds in order to gain the benefit of the cheap and speedy action of this tribunal, at the expense of a loss on the claim of its excess over the statutory limitation.
So far, then, public opinion has found its just expression in the legislature, and the right and luxury of litigation without the risk of ruinous costs has been granted by parliament to the people. But the arbitrary boundary of the new courts next suggests the great question, whether there is any good reason why the advantages, now proved by experience to be possessed by the inferior tribunals, should not be made the basis of a reform of the superior? and why the learned decisions of the latter, should not be made as available and inexpensive to the public as those of the former? What a strange spectacle do the superior courts now present! In them are seated in judgment the most accomplished lawyers of the land. Twice a year they proceed into our counties to dispense justice in all the pomp of a Royal Commission; a learned and eloquent bar attend their sittings, and no man ever charges their decisions with a taint of corruption or partiality. Yet, notwithstanding these apparent advantages, what is the result? The public are no longer suitors in those courts, unless they are driven into them by stern necessity; and
NOVELTY OF PROCEEDINGS IN COUNTY COURTS.
the actions tried in them may be counted by tens, whilst the suits in the County Courts may be reckoned by thousands. To what is this anomalous state of things to be attributed? The law which they administer is the same; and the judges of the superior courts are the best that England can produce. The reason is therefore only to be found in the difference which still exists between the practice of the popular and the unpopular tribunals. Permit us to conduct our reader for a short time on a visit to the actual scene of the two rival systems: there let us discover wherein the popularity of the one and the dislike to the other consist, and consider whether the general impression of each is derived from facts or from fancy.
If any observant person, then, will accompany us into one of the County Courts, and watch the proceedings in a few of the suits which are there in course of trial, he will soon perceive that no technical forms whatever are tolerated, save such as are absolutely necessary to set in motion the machinery of the tribunal. It is obvious that the defendant must receive a notice of the plaintiff's intention to sue him, and particulars of the nature of his claim. On the other hand, the plaintiff ought also in fairness to be apprised, if the defendant intends to rely on any unusual or special defence which may require peculiar evidence to rebut. These simple preliminaries being complied with, our visitor will find both the parties actually confronted in court without the intervention of any other forms. The dispute is then brought to a crisis and a close. Each party, by his own mouth, or by his attorney or his counsel (if he thinks fit to employ them), respectively explains his case, and substantiates his claim or his defence by the evidence of himself and his witnesses. The judge employs his experience and authority to exclude all immaterial matter, and terminates the cause either by summing up the evidence and obtaining a verdict from a jury, or (if a jury has not been required by the parties) by delivering his own judgment on the law and the facts of the case. Upon that judgment execution is awarded, and so the whole case is conclusively and entirely disposed of, unless either party should take advantage of the privilege of appealing, which has been secured by an act of parliament passed in 1850. But in that case the appeal is to be carried on in the simplest form of a statement either agreed upon by both parties, or settled by the judge, and is to be decided without delay by a court consisting of two puisne judges of one of the superior courts at Westminster. This controlling power is absolutely essential for the ends of justice, as an antidote to anomalous, or ignorant, or partial decisions.
Here, then, it is clearly seen that no needless expenditure, either of time or money, is incurred, though the exigencies of the suitors are fully satisfied. If the ultimate object of litigation in courts of law is the speedy attainment of a just and legal decision on the point in dispute by a competent tribunal, that object may certainly be accomplished here. These courts have also this great merit-that their decisions are attainable at such a moderate expense, that no man is deterred from enforcing in them a claim which he considers just, or from resisting one which he deems unfounded.
We now invite the same inquirer to examine with us the course of proceedings in an action brought to recover the sum of fifty guineas, which being beyond the jurisdiction of the County Court, must be commenced in one of the superior courts at Westminster, and tried at Nisi Prius. Let him ask the attorney for the claimant to narrate to him in detail the various forms which must necessarily have been there complied with in order to obtain a judgment for the sum in question; and further to point out all the rocks and shoals on which the most just demand is likely to make shipwreck. He will learn, to his great surprise, that before any other step is taken, a very important preliminary question must be considered-namely, what kind of an action, out of the various forms of action known to the English law, should be selected as cognate to the particular claim. When this point is settled, a writ of summons is served upon the defendant to inform him that the action is commenced. Even in this early proceeding, (which is only the faintest embryo of what is coming,) several casualties may not improbably occur. Not only must the particular species of the family of actions be finally selected in this writ, but the christian and sirnames of all the parties must be truly stated. Then, if the writ cannot be served upon the defendant, a writ of distringas must be obtained to compel him to appear; and in the case of either writ, a variety of questions are allowed to be raised as to the regularity of the writ itself, of the copy served, and of the mode of service.
But supposing the appearance' of the defendant to have been secured by the writ, does that import that the two parties are now confronted before the tribunal, and that the trial is about to begin? By no means. Though the appearance' was in ancient times a reality, it has for centuries degenerated into a pleasant fiction in the shape of an entry made in a book by the defendant or his attorney, simply stating that he has appeared; and it is only at this moment that he is supposed to be in a proper condition to receive further information from his ad
After the appearance' is secured, we come next in order to the 'pleadings. Our readers will probably suppose that by this term are meant the oral disputations of the counsel at the trial. Far from it. By the 'pleadings' are meant the written altercations of the two parties in certain technical language and forms, in which alone they are now carried on. This stage of every action tried in the superior courts is in general so little known and understood, that it deserves, we think, a little further explanation. In the days of the Plantagenets and the Tudors, the appearance brought the disputants vis-à-vis before the court, where their mutual altercations prior to the calling of witnesses were carried on in Norman French. By-and-by the custom of exchanging these counter-statements in writing crept in, and became the foundation of the present system of special pleading. This system has been firmly established for several centuries, and it was not till the reign of George II., that the Norman dialect was formally abandoned in them, or an absurd kind of engrossment called court-hand,' finally dispensed with.
Such being the origin of the system of pleading, we will next show in what shape it has clothed itself in modern times, and what are its bearings and meaning in relation to the action which it always precedes. The theory upon which it rests is logical and scientific. The intention of the mutual allegations is to sift out the point of controversy between the parties prior to the trial, and by throwing aside at each step the matter admitted by each, to narrow the inquiry to one or more propositions, which both dispute. Suppose, as an illustration, that an action is brought upon a lease of a house, to recover damages for a breach of a covenant, by which the defendant bound himself to repair the premises. To the plaintiff's statement of this injury, which is called his declaration,' the defendant must put in an answer, which is called his 'plea.' Perhaps in this case it may suit his purpose to plead that though the breach complained of was committed, yet he had been released from responsibility for it by the plaintiff before the commencement of the action. To this the paintiff may answer in his 'replication,' that though it is true that such a release was given, yet it has no legal effect, because, in fact, he was under the influence of unlawful imprisonment and violence at the time when he executed the releasing instrument. This the defendant may be supposed to deny, by his 'rejoinder,' declaring that, on the contrary, the plaintiff gave the release voluntarily, and not under the circumstances of force stated in the replication. Here the pleadings (which are clothed in language only known to the pleaders,) are brought to a close, because the parties have arrived at a proposition affirmed by one and denied
by the other. And when the issue' so evolved, is carried to trial, it will be unnecessary to prove the execution of the lease, for that is admitted by the defendant in his plea. Nor would it be material to prove the release, for the plaintiff, in his turn, admitted its existence in his replication. The jury would only have to consider whether that admitted release of the admitted lease was executed under unlawful influence or not; so that the trial would turn entirely upon the circumstances of that transaction. Hence it also appears that the system has the virtue of limiting the evidence at the trial to those points which are really in dispute, and relieves the parties from coming provided with the evidence which bears only on those parts of the transaction on which all are agreed.
Such being the apparent and theoretical advantages of special pleading, are there no countervailing vices which exceed the total of its virtues? In the first place, the practice is not consistent with the theory. According to the latter, a single issue is beautifully and scientifically evolved by the pleadings; and the case, with all its incidents, concentrated in one simple proposition. In practice, however, the defendant is allowed, "if he thinks fit, to put in several pleas, or answers to the plaintiff's case, even of the most contradictory nature. These of course lead to as many separate issues, or points of decision; and in this way the case is often as much complicated and perplexed as if it had been allowed to take its course without the aid of pleading. In the next place, this portion of the English legal system has called into existence, and still maintains, a class of lawyers known by the name of 'special pleaders.' The work and occupation of this peculiar body is, we believe, unknown to the lawyers of any other nation. It is in the dingy chambers of these gentlemen that the paper missiles above described, are fabricated which the unconscious clients are made to hurl at each other through the hands of their respective attorneys. There is probably no profession so little known to the public at large as this recluse brotherhood of special pleaders. Indeed, it is a common error to suppose that by a special pleader is meant a superior species of the genus barrister, specially employed as an advocate in the more difficult branches of his profession. It will doubtless surprise many of our readers to be told that a special pleader is not a barrister at all, but only a kind of amphibious person, standing, as it were, midway by himself, between the inner circle of the bar, and the outer court of the attornies. He does not present himself to be examined for an attorney, nor is he called by any inn of court to the degree of the bar; but being a member of one of those inns, he obtains a licence to practice from the