plaintiff cannot reply many matters. For instance, in indebitatus assumpsit, if a defendant pleads, first, that he never made any promise, and next, that he was an infant when he made the promise, the plaintiff must either admit the infancy and set up a subsequent promise, or if not, deny the infancy altogether, and re-affirm the original promise; for he cannot both deny the infancy and set up a subsequent promise. Now I would ask the House, why, if the defendant is allowed to plead several matters, the plaintiff is not allowed to reply several matters? There must be some limit, I allow, set to the matters alleged in the replication; but surely there can be no harm in allowing the general issue to be met by as general a denial. The next stage in an action is the demurrer, which is an issue, not on a matter of fact, but on a matter of law. By demurring a party is obliged to confess the facts to be true as stated by the opposite party, but denies that by the law arising on those facts any injury has been done to the plaintiff. Nothing can be more absurd and foolish than the rule which calls on a party, if he denies the law as applicable to certain supposed facts, to admit those facts before his demurrer can be made ripe for decision. Why, every man is demurring every day of his life! Suppose that I am accused of having uttered a calumny against the reputation of another party on a given day, at a given place. Surely I may be allowed to say, "I never was at that place in my life, and therefore it is impossible that I should have uttered the calumny against you which you represent?" Why, then, may I not on a point of law be permitted to say, "Admit, for the sake of argument, that I was there, still I say that the consequences of which you complain did not follow?" I repeat, that a contrary rule is both impolitic and unwise. I admit that if any mischief is occasioned by the present practice, there is an opportunity of remedying it, after the matters are placed on the record, by alleging error in it. This observation leads me to remark that I would allow all formal errors to be amended even at the very last stage of the cause. No one should be turned round on a mere variance,-no one should be defeated on a mere verbal mistake, as it was my lot to be defeated in an indictment for perjury, in which I was recently engaged. It was a case in which the jury was empanelled, the witnesses examined, and much evidence received, before it was discovered that there was a variance between the affidavit on which the perjury was assigned, and the copy of it which formed part of the record, which was fatal to the indictment. In the affidavit the word grandmother was used: in the record the syllable "grand" was omitted, and only the two last syllables "mother" were inserted. Owing to that slight error, all the trouble of the Court, and all

the expense of the prosecutor, were rendered totally useless and unavailing. In 99 cases out of every 100-indeed I might say in 999 cases out of every 1000, in which parties are turned round on variances, the variance is not greater than that which I have just mentioned to the House. The improvement which I would suggest, is to allow nobody to be turned round on a variance, except on the discretion of the judges. I would go further than this, and would say that nobody should be turned round for want of a proper stamp being affixed to any instrument which they may be compelled to produce in the course of a trial. Earl Dudley was recently nonsuited in an action, because it was stated that the instrument on which he rested his claim contained more words than the stamp affixed to it warranted. At the trial of the cause it was not disputed that the words were more in number than the stamp covered; but it was afterwards found out that the defendants had counted the words wrongly, and that they fell short of the number mentioned in the Stamp Act. I think that in such cases some protection ought to be afforded to plaintiffs; and I would therefore allow the judges to say to them, "You shall pay a 207. penalty, and have your instrument stamped and made available in Court, instead of only paying a 10%. penalty, if you take it to the Stamp-office."

Let not the House suppose that the grievances which I have just been describing as emanating from the present system, are imaginary and theoretical grievances. I can assure the House that they are not so; but they are in many cases actual grievances, amounting almost to a positive denial of justice. I hold in my hand a letter from an eminent practitioner in the law, in which the effect of them is feelingly and forcibly pointed out. The widow of a Welsh clergyman was obliged to bring an action on a mortgage-bond for the payment of the mortgage-money at a given day, and interest in the mean time, and for performance of the covenants of the mortgage-deed. She might have foreclosed by a proceeding in equity; but, instead of doing so, she brought an action of debt of the simplest possible kind, both in its nature and in the form of the proceedings; and the House shall now hear from the eminent practitioner himself, what was the progress and termination of that action:-"The defendant was a member of Parliament, and some delay, as is usual with such defendants, took place in enforcing an appearance. When the declaration was delivered, the defendant, of course, demanded oyer of the bond, and, that obtained, made as many applications as the judge would allow, for further time to plead. At the expiration of this period he pleaded-1st, Non est factum―2d, Solvit ad diem-3d, Solvit ante diem-4th, Solvit post diem-5th,

Performances. It is needless to add, all these pleas were pure legal fiction. The plaintiffs in their replication took issue on such pleas as concluded to the contrary, and assigned breaches of the condition, according to the statute. The breaches assigned were, non-payment of the principal-non-payment of the interest-and non-performance of the covenants of the mortgage-deed. The defendant, for the purpose of splitting the second into two issues, and thereby creating the delay of an issue in law to be tried before the Court in banco, and an issue in fact to be afterwards tried at Nisi Prius before a jury, demurred to the last assignment of breaches-a sham demurrer for delay. The plaintiffs joined in demurrer, and made up and delivered the paper-book and demurrer-book. The defendant, in order to entitle himself to bring a writ of error for delay, without giving bail, then suffered judgment to go by default, for not returning the paper and demurrer-book. The consequence of this was, that all the pleas, replications, rejoinders, and demurrers, became useless, and were struck out of the record; and the plaintiffs had to execute a writ of inquiry before the chief justice, according to the statute of William III., to assess damages on the breaches suggested. But these proceedings had answered the purpose of harassing the poor plaintiff with useless and expensive litigation, swelling the pleadings from five folios to 118; and they had already accomplished much delay, having occupied four terms: the bill was filed in Trinity Term, the pleas and replication in Michaelmas Term, the demurrer and joinder in Hilary Term, and the final judgment was obtained in Easter Term. The defendant then brought a writ of error, without the slightest pretence of actual error; and that proceeding, of course, delayed the plaintiffs four terms longer. All this was necessarily attended with expense, which might have been grievous to a poor person, as the party in this case was. The costs of the judgment were taxed at 80%. 4s., and the costs in error at 197. 10s., making together 997. 14s. for the costs, and two years for the active prosecution of an undefended action, in which the length of the declaration was five folios! Comment on such a case would be a waste of words."- "So tender and circumspect," says Blackstone, "is the law of England 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. So anxious is it to maintain and restore to every individual the enjoyments of his civil rights, without intrenching on those of any other individual in the nation-so parentally solicitous is our whole legal constitution to preserve that spirit of equal liberty, which is the singular felicity of the British nation !"

I must now tell the House, that besides the 997. 14s. already mentioned, this poor Welsh widow had to pay 301. for extra costs -costs for which she never received a farthing from the defendant, and which she had to defray after he had handed his share of the costs over to the plaintiff's attorney. She was, I repeat, 30%. out of pocket in prosecuting an undefended action; and if it had so chanced that the defendant, instead of being a distressed and feeling man, for I happen to be well acquainted with the member of Parliament in question, and know that though a distressed man, he is still a most feeling and conscientious man,-if it had chanced that he had been such a character as was known to have existed in this country, and as had often been represented on the scene,namely, a pertinacious and oppressive man, with a long purse to back him, he would have defended himself at every stage of the action by counsel; he would have gone before the judges, and had the demurrer argued; he would have had it tried at Nisi Prius; he would have brought a writ of error; he would have carried it through the Exchequer Chamber into the House of Lords;—and the costs in that case, instead of amounting to 30%., would have amounted to-I dare not say what sum, knowing that costs to the amount of hundreds have been incurred to recover a debt of only 201. "So tender was the law of England in providing that no man's right should be affected by any legal proceeding-so parental its solicitude to maintain and restore to every individual the enjoyment of his civil rights, without intrenching on those of any other person whatsoever !"

There is a case in the first volume of Mr. Justice Blackstone's Reports, which I wonder the learned author had not recollected before he wrote this extraordinary panegyric on the laws of his country. A gentleman of the name of Robinson in Yorkshire-I trust he was no relation to the illustrious nobleman who lately filled so distinguished a situation in His Majesty's counsels-was minded to try the resources of the law. To a declaration that had five counts, he put in twenty-seven special pleas; and in the course of the action the pleadings amounted to near 2000 sheets, which rendered the Court very indignant. Mr. Justice Blackstone says, that he appeared in person for himself, no one else daring to appear for him. He said that the question was an important question of

right, and that he felt himself called on to avail himself of every aid that he could in shaping his defence of it. The Court, on hearing him, ordered the issue to be drawn up by three barristers, who settled it in a quarter of an hour, and in the small space of a quarter of a sheet of paper. Talk of scourging with a rod of iron! Why, the lash of parchment which is applied to all suitors in our courts of law-that flapper which keeps them awake by the sufferings it inflicts -that goad which drives them on from one stage of misery to another, till it makes them plunge into complete and undeniable ruin, —that is a more effectual rod for scourging a nation than any rod of iron which even the ingenuity of a Phalaris could invent.

I next come, in the consideration of this subject, to say a few words on juries—a point on which I feel it the more incumbent to touch, because juries have of late been attacked by the reformers of the law. I hold them to be a wise and politic, and almost perfect institution; and I say this the more willingly, because I have been represented, very erroneously, to entertain doubts respecting its excellency. I speak as a practical professor of the law, when I say that there is no other mode of trial so admirably adapted to prevent wrong, to secure right, and to eviscerate the truth, as the trial by jury. In the first place, it controls the judge, who might, not only in political cases, have a prejudice against the defendant, but might also, in private cases, have, what is equally detrimental, a prejudice against a particular counsel. In the second place, it supplies that want of knowlege of the world which judges seldom possess, and which, from their habits and station in society, it is not decent that they should possess. In the third place, who can so well weigh the value of conflicting evidence as twelve men indifferently chosen, of various habits, characters, and prejudices? Who, moreover, can so well assess the amount of damages which a plaintiff ought to recover for any injury he has received? How can a judge decide half so well as an intelligent jury, whether a plaintiff should, for an assault, recover 50l. or 1007. damages? or, for a criminal seduction, 1500l. or 2000/. damages? The system looks well in theory, and works well in practice; it wants only one thing to render it perfect, namely, that it should be applied to those cases from which the practice in equity has excluded it; and that improvement would be best effected by drawing back to it that jurisdiction which the Court of Equity has taken from it.

This consideration brings me to the next point which I intend to press on the notice of the House-I mean the admission of evidence. I must say, that it appears to me to be an error to exclude, so rigidly as we do, the testimony of the parties in an action. It is received in all questions of arbitration; why should it be refused in open court? I do not fear that perjury would become more frequent by the alteration which I propose, though I am rather