till he be actually found indebted, consistently with due security, to the creditor. At present it is the custom, first to presume the debtor to be in the wrong, then to arrest him and to throw him into jail. I am given to understand that the creditor's power is often abused for electioneering purposes. A candidate is sometimes arrested for a debt which he has contracted within a few days, and his ability to pay which no man can doubt. It is sometimes difficult or inconvenient to procure bail. I have heard that when a gentleman is arrested at the west end of the town, he sometimes sends for his butcher or baker to bail him; and although this practice may have its conveniences, it is not quite the right thing. The gentleman cannot afterwards, with a very good grace, abuse the butcher's bad meat, or complain of the baker's bread. The system, however, operates more grievously on the small tradesman: he has not the same facilities of procuring bail as persons in a higher rank; and if imprisoned, as is most likely to be the case, he sometimes never holds up his head again, or is not like the same man as before. Why should a man be arrested on mesne process at all? Is it likely that because a 50%. debt is sworn against a man, that it will be sufficient to induce him to leave his house and home, his wife, his children, and even his country? Some men might act thus, but their conduct would form the exception, and not the rule. If the law on this subject were reformed, tradesmen would be less ready to give to suspected, needy, and extravagant men credit, for which those who pay honestly are generally proportionably taxed. Why should not the writ be left at a man's house, and require him to find security only when it shall appear that he is about to fly. This is the practice in Scotland, where people have the reputation of being sufficiently wary.

I now come to that point of the law which supposes the parties to be in court, and calls on them to state the claim on one side and the defence on the other. This is a part of my subject which I approach with great distrust in the presence of my learned instructor (the Solicitor-General), by whose knowlege and experience I have greatly benefited. Lord Coke was of opinion, that there was something extremely delightful in the practice; for, speaking of the word placita, he says it is derived from placendo, quia bene placitare super omnia placet. Lord Mansfield was also an admirer of pleading, but his praise was somewhat more moderate. "The rules of pleading," said he, "are founded on good sense." So, indeed, they were originally, but subtlety has put aside good sense, and the legislature, by allowing the general issue to be pleaded, has assisted in lowering the character of pleading. In my opinion, every departure from the original strictness of pleading is not only injurious to the pleaders them

selves, but also to society. My great object is, that the parties should declare their claim and defence as early as possible, and that, in so doing, all repetition and unnecessary statement should be avoided. These were the principles on which the ancient pleaders bottomed themselves; but the last century and a half has made great havoc on them.

The first count in the declaration ought to convey precise know lege of what the action is about; but according to the present practice that may not be done. In an action of account, the declaration merely states, that the action is brought to recover money had and received for the use of the plaintiff. This same declaration may be employed in seven actions, each of a different nature ;— first, where money has been paid by one person to another, for the use of the plaintiff; secondly, where money has been received on a valuable consideration or a contract not executed (this would include all cases of contract); thirdly, money paid in mistake and retained; fourthly, money paid by one person to a stakeholder in consideration of an illegal contract; fifthly, money paid to a revenue officer for releasing goods; sixthly, on fees of office (the assize of office being now obsolete); lastly, to try a landlord's. liability. Again, in cases of trover, the same form of declaration serves for seven cases, as various in their natures as can well be imagined. The declaration states that the plaintiff was possessed of a gun, which he has accidentally lost, and which has come into the hands of the defendant, who has converted it to his own use. The same declaration serves for the following cases :—first, a gun lost by one person, found by another and converted to his own use; secondly, that the gun has been taken by the defendant, under pretence of some title, but not feloniously; thirdly, a gun deposited and refused to be restored; fourthly, a gun stopped in transitu on account of bankruptcy; fifthly, an action brought by the assignees to recover it; sixthly, an action against the assignees to try the bankruptcy; seventhly, an action against the sheriff to try the validity of an execution. In actions of trespass of every kind, the language of the declaration is the same. I will not repeat the mode in which the various counts are framed, as my objection is not so much to the rigmarole which they contain, as to the circumstance that all declarations in actions of trespass, whether the trespass be committed in the taking of goods, or in the seduction of a man's wife, servant, or daughter, are drawn up in the same way as they are for trespass committed in the assault on a man's person. They tell the defendant nothing-they tell the counsel nothing-they tell the judge nothing. It may be said that the defendant must know the cause of action himself; but that does not always follow. There is, however, one person who

must know it, and that is the plaintiff. The plaintiff, I repeat, must know it, and ought, for the satisfaction of all parties, to state it distinctly.

The next point to which I wish to call the attention of the House is the declaration in the action of trespass quare clausum fregit. In such actions the description of the wrong done is more than ordinarily specific. The damages in the declaration are laid at 1s., as the object of the action generally is to try a right. In all other cases, where a knowlege of the wrong suffered is material, the court, the counsel, and the suitor, are left equally in the dark; but in the case to which I have just alluded, where a knowlege of the circumstances under which the trespass is committed is immaterial, every thing is told to them of which it is unimportant that they should be informed. The next stage to the declaration in every action is the plea; and here I must observe, that if the plaintiff tells the defendant nothing in his declaration, the defendant, in his turn, tells the plaintiff nothing in his plea. I maintain, however, that the plaintiff ought to be informed of the nature of the defence which the defendant intends to set up at the trial, if for no other reason, at least for the prevention of the frauds and perjuries which so often take place under the present system. Perjury is encouraged by the vagueness and indistinctness of modern pleading; and it is notorious to every gentleman who practises in Westminster Hall, that when parties fight on the record, they too often fight by perjury. In a general indebitatus assumpsit, which is in the nature of an action of debt, the general issue is non assumpsit. Now, under that plea, no less than eight different defences may be set up as a denial of the contract,payment, usury, gaming, infancy, accord and satisfaction, release and coverture. All these pleas are stated in the self-same way. So, too, in an action of trover for a gun: the defendant, under the plea of "not guilty," may set up as a defence that he is a gamekeeper, and has taken it by virtue of the qualification act, or that he has a lien on it for passage-money, and has therefore a right to detain it, or that he has received it as a deposit, and is entitled to keep it. All these defences have been absolutely made, and each of them has been concealed under the sweeping plea of "not guilty;" so that every body will, I think, agree with me, that if the count teaches the Court and counsel little, the plea teaches them still less. Mr. Justice Blackstone, with a full knowlege of the generality of all declarations, and of all pleas in assumpsit, in trespass, and in trover, concludes his account of special pleading and actions (not otherwise remarkable for its accuracy) with the following panegyric on that perfection which they share in his eyes with all the rest of our system! "This care and circum

spection in the law,-in providing that no man's right shall be affected by any legal proceeding without giving him previous notice, and yet that the debtor shall not by receiving such notice take occasion to escape from justice; in requiring that every complaint be accurately and precisely ascertained in writing, and be as pointedly and exactly answered; in clearly stating the question either of law or of fact; in deliberately resolving the former, after full argumentative discussion, and indisputably fixing the latter by a diligent and impartial trial; in correcting such errors as may have arisen in either of these modes of decision, from accident, mistake, or surprise; and in finally enforcing the judgment, when nothing can be alleged to impeach it; this anxiety to maintain and restore to every individual the enjoyment of his civil rights, without trenching on those of any other individual in the nation-this parental solicitude which pervades our whole legal constitution, is the genuine offspring of that spirit of equal liberty which is the singular felicity of Englishmen."

The inconsistency of our rules of pleading is the next head of complaint to which I shall allude, and which I conceive to be as manifest as their vagueness and indistinctness. Why should a man be allowed to plead infancy under the general issue? If it be right that the 'defendant may avail himself of such a plea, it is equally right that he should give the plaintiff notice that he intends to use it, in order that he may examine into its correctness previously to its trial. What is a plaintiff to understand when a defendant first pleads that he has never made a promise to pay, and then in the same breath states that he was an infant at the time he made it? Next comes the multiplicity of counts and pleas. A man lays his claim, which in itself, perhaps, is perfectly simple, in ten different ways-throwing, as it were, his drag-net on the waters, to catch every thing which may fall within its meshes. The pleas are in consequence framed to meet ten different counts; and hence arise a multitude of pleas equally inconsistent with the truth and with each other. Take, for instance, the case of a debt on bond. The first plea in such an action is the general issue, non est factum, whereby the defendant denies the bond being his deed; the second is, solvit ad diem-he paid it on the day mentioned in the bond; the third is, solvit ante diem-he paid it before the day; the fourth is, solvit post diem— he paid it after the day; and the fifth, performance and a general release. Now all these pleas are so clearly and undeniably inconsistent with each other, that it is quite unnecessary for me to say a word respecting them. What can a plaintiff expect, when a defendant first asserts that he never executed the bond on

which the action is brought, and then asserts, in the next moment, that he has not only executed it, but has moreover paid it off? Where pleas are consistent with each other, it might be well to let them be pleaded in full abundance; but where they are not only not consistent, but absolutely destructive of each other, it would be a good rule to establish that such pleas should not be put on the record. While on this part of my subject, I would again recur to certain matters which have come within the sphere of my own personal knowlege in the profession.

I recollect that at one assizes at York, it was my dúty, as junior counsel, to open a declaration, in an action brought to enforce the payment of a wager laid on the life of Napoleon Buonaparte. I told the jury, that the defendant, in the year 1802, in consideration of one hundred guineas, had agreed to pay the plaintiff a guinea a-day during the life of one Napoleon Buonaparte. I then amused the Court and the audience by stating, that there was another count, in which the wager was averred to be laid on the life of a second Napoleon Buonaparte; and a third count, in which it was averred to be laid on the life of a third Napoleon Buonaparte. Now, by all this verbose tautology, there was nothing gained to the suitor, but there was much gained to the members of the profession, for it tended to make the suit more costly. Before the statute of the 4th and 5th of Anne, no man was allowed to plead double, except under a protestation; but by that statute it was enacted, that he might, with leave of the Court, plead two or more distinct matters or single pleas. I must now inform the House, that though that leave was formerly granted by the Court as matter of discretion, it is now generally given as a matter of course. There is, however, a fee to be paid to the Court for that leave, and a fee to be paid to counsel for signing the rule to obtain it. I believe that the judges are now fully aware of the folly of which their predecessors were guilty in establishing such a practice. The mischief of it is great and undeniable. I believe in my conscience, that many an attorney's clerk, who afterwards proceeds to still greater frauds, begins his career of crime by defrauding counsel out of the half-guinea fee, which should be paid them for their signature of such rules. It is not necessary that they should themselves sign their names, and I believe that a knowlege of this fact among attorneys' clerks and barristers' clerks seduces many of them to commence a course of petty embezzlement, which leads to larger peculations in the long run, and ends in sending them as convicts to seek their fortunes in another hemisphere.

There is another inconsistency in our system which I cannot allow to pass without notice. A defendant may plead, but a VOL. XXIX.

Pam.

NO. LVII.