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Attorney-general : so that it is in the escaped. So that public justice was utpower of your adversary to refuse this at terly frustrated, as well as the most griethe time it may be most for his advantage vous wrong inflicted upon individuals. so to do; while you have no option what- Nor did it end here; the poor farmer ever in case it should be for his interest to fated to lose his life by the transaction. proceed, and for your's to delay. I pray Meade, the false witness, and Law, the the House will mark attentively

what I am farmer whom he had informed against, and now about to relate, although, indeed, I who was become the witness against him, should apologise for thus appealing to lived in the same village; and one eventhem, after the singular patience with ing, in consequence, as was alleged, of which I have been heard throughout, for some song or madrigal sung by him in the the great length of time I have already street, this man Meade seized a gun, and occupied. There was a case in the Court shot Law from his house dead upon the of Exchequer, in which I acted as counsel spot. He was acquitted of the murder, for the defendant, and had to subject a on the ground of something like provocaCrown witness to a severe cross-examina- tion, but he was found guilty of mantion; he exhibited strong indications of slaughter, and such was the impression of perjury, but the verdict went against me his guilt upon the mind of the court, that notwithstanding My learned friend, Mr. he was sentenced to two years imprisonSerjeant Jones, (whose talent and profes- ment. A case of more complicated injus

. sional skill entitle him to higher praise tice-one fraught with more cruel injusthan any

in my power to bestow,) whether tice to the parties, I never knew in this he profited by my experience, or was more country, nor do I conceive that worse can dexterous in dealing with the case, did be found in any other. We may talk of honour to himself by succeeding in the our excellent institutions, and excellent next trial, when the same witness was they certainly are, though I could wish examined; for the suspicion of perjury we were not given to so much Pharasaical entertained before was now turned into praising of them; but if, while others, certainty, and the party acquitted. A who do more and talk less, go on improvprosecution for perjury was instituted ing their laws, we stand still, and suffer against that man and others connected all our worst abuses to continue, we shall with him ; eighteen indictments were soon cease to be respected by our neighfound at the sessions, and the Crown at bours, or to receive any praises save those once removed the whole by certiorari into we are so ready to lavish upon ourselves. the Court of King's-bench. There they i.—And now, having thus far cleared were all to be tried, and a former Attor- the way for examining the proceedings ney-general conducted the prosecution. in our courts of justice, the first inquiry On the first, Meade, the witness I have that meets us is, by what means unmentioned, was clearly convicted. The necessary litigation may be prevented ; other seventeen were then to have been in other words, suits unjustly and frivotried, and Mr. Serjeant Jones called them lously brought, and wrongfully defended, on, but the Crown had made the whole by oppressive or intemperate parties. I eighteen Special Jury causes : a sufficient shall here, as under all the other heads of number of jurymen did not attend; my the subject, begin by laying down what I learned friend wanted to pray a tales, and take to be the sound principles of legislathe Crown refused a warrant. Thus an tion applicable to the point, and then expense of ten thousand pounds was in comparing with these the provisions accurred, and a hundred witnesses from tually adopted by our jurisprudence. The Yorkshire were brought to London, all for first and most obvious step is, to remove nothing, except, after the vexation, trouble the encouragement given to rich and and delay he had endured, to work the litigious suitors, by lessening the expense ruin of the prosecutor, who had been first of all legal proceedings; and I would put harassed upon the testimony of the per- an end to all harassing and unjust dejured witness. These poor Yorkshire fences, by encouraging expedition. Next, farmers, whom this villain had so vexed, I would not allow of any action or prohad no more money to spend in law; all ceeding which only profits the court and the other prosecutions dropped ; Meade the practitioners, and the object of which obtained a rule for a new trial, but funds is always granted as a mere matter of were wanting to meet him again, and he course; all things should be considered as

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done at once and for nothing, which may ) perly, at the expense of him who brings now be done on a simple application to forward the suit for his own interest, unthe Court with some delay and expense. less where a very obvious benefit arises to Thirdly, no party should be sent to two the other party; for in Scotland they have courts where one is able to afford him his nothing like our statute of Gloucester, and whole remedy; nor to a dear and bad costs are always in the discretion of the court, when he can elsewhere have a Court, as with us in equity. Sixthly, I cheaper and a better remedy; nor should would abolish all obsolete proceedings, any one be obliged to come twice over to which serve only as a trap to the unwary, the same court for different portions of or tools in the hands of litigious and dishis remedy, which he might have all in one honest parties, and lie hid or unheeded proceeding. Fourthly, whenever a strong until, unexpectedly, they are brought presumption of right appears on the part forth to work injustice. For an instance, of a plaintiff, the burthen of disputing his I will name wager of law, a defence which claim should be thrown on the defendant. may be set up in answer to an action of This I would extend to such cases as bills detinue, or of debt on simple contract. of exchange, bonds, mortgages, and other This is another of the remains of the such securities. In those cases I think old feudal system. The defendant has the plaintiff should be allowed to have his only to swear that he does not owe the judgment, upon due notice given, unless sum of money claimed by the plaintiff, good cause be, in the first instance, shown and bring eleven others to swear that they to the contrary, and security given to pro- believe him; and a defendaut would cersecute a suit for setting the instrument tainly be badly off if he could not find out aside. This is a mode well known in the so many persons to do this kind office for law of Scotland, and would put an end him, as he needs only bring those who to all those undefended causes, which are know him, but know nothing at all of the pow attended with such great and useless circumstances; for the less they know, the expense, as well as injurious delay to the more ready will they be to swear they beparties. Fifthly, I would suggest, that in lieve their friend. He has only to place all cases where future suits are to be ap- them on opposite sides, at the end of the prehended, proceeding might be adopted table, (for the wisdom of past ages hath immediately to raise the question, and carefully fixed the stations which the parquiet the title. The law on this head ties are to occupy pending this solemalso is very different in the two parts of nity,) get them to swear, and there is an the island. In England, it is not possible end at once of the action. It is true that to have the opinion of any Court, until the pleas of this kind are seldom pleaded, parties are actually engaged in a lawsuit, though it was done some time ago in the opportunities for which may very frequent- Coinmon Pleas : and the oldest practily not occur, until the witnesses to prove tioners there, not being acquainted with a case may be dead, or an infant, or a the plea, were about demurring to it, person living abroad, and incapable of when it was discovered to be a law wager well defending his right, has come into well pleaded, and a complete good defence possession. But the Scotch law furnishes a in law, though the practice was obsolete. kind of action, the adoption of which may Now, these being the fundamental prinbe productive of the greatest benefit, as Iciples that should guide us on this head, have once and again heard lord Eldon nothing can depart more widely from them hint in the House of Lords. I know very than our practice, and nothing can be well that here we may file a bill for per- more easy than making it conform to them. petuating testimony, but there must be in the first place, without throwing away an actual vested right in the party insti- a thought upon the pain which I should tuting the suit: and the proceeding is, necessarily inflict upon some of my learned besides, so cumbrous, as rarely to be used. friends, much wedded to such lore-withThe Scotch law, on the contrary, permits out caring a rush for the quantity of cua declaratory action to be instituted by rious learning which would thus be thrown the party in possession or expectancy, to waste-or dropping a tear over the quia timet, and enables him to make all musty records which must be swept away whose claims he dreads parties, so as to - I would abolish at once the whole docobtain a decision of the question imme- trine and procedure of Fines and Recodiately. This is, of course, and very pro- yeries. I hope I may not offend the ears

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of my respected brethren the conveyancers; | by the assignment under the commission but I may say, that if ever there was an not only the interest vested in him is conabsurdity not to be tolerated, it is those veyed, but all remainders expectant upon fictitious suits at any time, but above all, it are destroyed, for the benefit of his crein the present state of society.

ditors, and the estate passes to his asI wish to make myself understood, for signees free from all restriction.

The I see by the countenances of some gen- courts have held, as indeed the Bankrupt tlemen, that they do not quite comprehend Laws evidently intended, the conveyance the whole absurdity of the law respecting in bankruptcy to be a statutary barring of fines and recoveries. I do not by any the entail—an enlarger of the estate tail means wish to interfere with the power to a fee. Now, I would do that for honest of making, or of barring entails : I con- landowners, which the law at present persider the English law as hitting very hap- mits to be done for tradesmen and their pily the just medium between too great creditors. So, too, a man and his wife strictness and too great latitude, in the cannot convey an estate of the wife withdisposition of landed property; sufficient out a fine or a recovery, neither can the restraints upon perpetuities, upon endless wife be barred of her dower without a settlements, are provided, to allow a free similar proceeding. The reason is, the commerce in land, as far as that is con- influence her husband may possess over sistent with the interests of agriculture, her mind; and, consequently, a judge and the exigencies of our mixed con- takes the woman, in these cases, into a

stitution; while as much power is given private room, to examine her, first, as to of annexing estates to families, as may whether she acts from fear, and then, prevent a minute division of property, and when that is out of the case, whether she is preserve the aristocratic branch of the go- influenced by favour and affection; and he vernment. With the substance of our also examines her, as to any temporary inlaw of entail, then, I have no wish to med- crease of affection from any passing cause; dle; all I desire is, to abolish the ridicu- and then, when she has purged herself of lous machinery by which fines are levied all increase of affection from any passing and recoveries suffered. Every gentleman cause, of all fear, and all love, she is allowknows, that if he has an estate in fee ed to give her consent. Now I would prohe can sell it, or bestow it in any way he pose, in place of all this inquiry, not al. may please; but if he has an estate tail, ways very delicate, nor even very satisfacto which he succeeds in the long vacation, tory, to let husband and wife join in comhe can go, on the first day of Michaelmas mon conveyance, with the consent of a term, and levy a fine, which destroys the guardian, to be appointed, or of the expectant rights of the issue in tail; or next male relative of the wife, who is not he may, by means of a recovery, get rid of related to the husband, and not interested those rights and all remainders over. He in either the succession or the conveycan thus, by going through certain mere forms, make himself absolute master of Now there is certainly nothing very real his estate, and do with it as he pleases. in a Fine; but as to Recoveries, I ask, do But this must be done through the Court those persons who seem to hold by them, of Common Pleas, at certain seasons of know at all what they avowedly proceed the year. And why should there exist a upon? They go upon the ground of comnecessity for going there? Why not, if pensation in value being made to the reit be necessary, pay the fines which are mainder man, whose right they cut off, due, without going there at all? I, the and who, but for this fictitious suit, would other day, asked this question of some have a title to take the estate after the learned friends,—way force tenants in tail , into court, for mere form sake? They * Of the bar to remainders in tail there laughed at my simplicity, and said, “ All can be no doubt; but there are decisions this was asked a hundred years ago; there which lean against the operation of the is no necessity for the proceeding, only to Bankruptcy, to bar the remainders over, keep up the payment of the King's silver, contrary to Blackstone's decided opinion, alienation fines, and other duties.” In (2 Com. 286. 361.) and it should seem to case of bankruptcy, the necessity for those the plain intent of the legislature. See forms is not felt. "A trader who is tenant Doe v. Clarke, 5 B. A. 458, and Doe y. in tail commits an act of loankruptcy, and Tayleure, 3 B. A. 557.

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tenant-in tail's-decease. He is said to imaginary trusts made in settlements for recover a compensation in value; and from the purpose of preserving contingent rewhom does he get it? Why, the common mainders. It has been said, that some vouchee, who is the crier of the Court of Members of this House, who, during the Common Pleas, and who, like the man at Commonwealth, retired to the country the Custom-house, obliged to take all the and employed themselves in conveyancing, oaths other people do not like, lies groan- invented those refinements which characing under the weight of all the liabilities terize what are called strict settlements. he has incurred to every remainder man, I repeat, that my object is not to touch since he became crier, and answerable the principle of the law of entails, as it for the millions of property in remainder, now exists in this country; believing that the rights to which have been barred, he owners of estates should not be laid under not being worth a shilling. Locke says, greater restrictions than they now are in that a madman is one who reasons rightly disposing of them by will after their death, from wrong premises; so it is with the or by settlement upon marriages in their lawyers on recoveries, who argue very in- families. But let the purpose of the geniously, and even soundly and consist- owner be accomplished more simply and ently, on the principle of the compensa- more easily than can now be done. I tion, and whose conclusions could in no would allow every man to settle or to dewise be impeached, if you once allowed | vise his property to A during his life, and the fact, that those in the remainder are after him to B and C in succession, compensated by the proceedings. Indeed, making by plain words so many life esit happened to myself

, not long ago, in a tates, and giving a fee to the person who, case, where a very large estate was in by our present law, takes the first estate question, to argue, and to prevail, respect tail, not allowing him to have any power ing the effect of a recovery, on this very over the property until it became vested ground of compensation in value. I there in possession, but requiring that, in order had to contend, that the claimant was to affect it while in expectancy, he and barred by the recovery, in consequence of the tenant for life should join in some the compensation received from the simple conveyance, as a feoffment, wherevouchee, though it was quite certain that, by the settlement might be carried on. from the vouchee, there never was, nor The property then would not be alienable ever could be, received a single shilling. an hour sooner than it now is, and it would My argument, on that occasion, did not be alienable without fine or recovery ;excite a smile in the court, because the and I would make the act, which the law principles of the law were known to be now deems a discontinuance, as a feoffihus established, and the consequences ment in fee by tenant for life, absolutely were of serious import, be the premises void to all purposes, instead of making it ever so ludicrous. But, were I to use the a forfeiture of the particular estate of the same argument elsewhere, it would, if feoffor though void as a conveyance; so understood, be received with much less that I would get rid of the necessity of gravity. Put an end, then, to all such trustees being interposed to save the conridiculous forms, which have no earthly tingent uses from destruction. use but to raise little money by way of Again, I would restore the Statute of fees; and which, beside creating expense Uses to what it was clearly intended to and delay, and oftentimes preventing te be. Our ancestors made that law, by nants in tail from passing their property which if land were given to A for the use by will, which they cannot if they die of B, the latter was deemed the legal before suffering the recovery, give rise to owner, the use being executed in him, just a number of questions in law, often very as if A did not exist. It was justly obpuzzling, always dilatory and costly—not served by Lord Hardwicke, that all the · rarely to mistakes in fact; as where I pains taken by this famous law, ended in knew an estate go to the tenant in tail in the adding of three words to a conveyremainder, instead of the recoveree's heir ance. This has been said by conveyancers at-law or devisee, which he fully intended to be a severe remark,* but it is perfectly it should, merely because in suffering the recovery an omission was made of one * Some have questioned its authentiparcel.

city, as not to be found in MS, note of Sir, I also would put an end to those Hopkins v. Hopkins--but the words are

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correct; for the Courts of Equity invented happened to come within my own obsersecond uses or trusts, by holding with vation. I was counsel in a case, at York, the Courts of Law, that the statute did not where an agreement had been entered into apply to land given to A to the use of B, and possession given; but because it did in trust for C; that it executed the use not contain words of present demise, it only in B, but not in C; therefore, the was no lease, and, therefore, the tenant whole provision is evaded, by making the could not stand a moment against the gift “ To the use of B in trust for C;" and ejectment that was brought, but was driven these three words send the whole matter into the Court of Chancery, where the into Chancery, contrary to the plain intent other party could just as little stand against of the statute. It was also held, that him. How much inconvenience, expense, copyhold estates are not within the statute and delay, then, might be saved, if such in any way, and there are other nice ex- an agreement were pronounced equivalent ceptions, but not much better grounded. to a lease; and, in general, every thing Can there be any reason whatever for not were supposed done in one court, which making all such estates legal at once, and may be ordered as a matter of course to restoring them to the jurisdiction of the be done by another, reserving, no doubt, common law, by recognizing, as the owner, all objections on the head of fraud, misthe person to whom in reality the estate is take, surprise, and the like, which may be given, and passing over him who is a mere raised by pleading at law, just as easily as nominal party?

in equity. Another deviation from the principles I In like manner, I would allow a legatee have laid down, and a great source of to sue an executor or administrator for his multiplicity of suits, is the law with re- legacy, and the mortgagor to sue for his spect to agreements for sales, leases, and rights. It is always said, that in these other conveyances. Thus, if I agree with and the like cases of active trusts, accounts a person to give him a lease, though he, must be taken; and so they must in every under the agreement, becomes my tenant, action where there is a matter of set-off he is my equitable tenant only, but not against a demand. The old action of my legal tenant. He may be possessed account might be greatly improved ; and of a written agreement, signed and sealed, by its aid, and by reference to arbitration, for a lease of ten years, and may occupy where necessary, much that now goes to under it, but he has no lease which a equity might be disposed of at law. The Court of Law can take notice of ; and if an only reason why such cases as these, where ejectment is brought, he must go out. He the assets are to be marshalled, and cross may go into a Court of Equity on his agree claims considered, now go into the Court ment, if that is any comfort to him; he of Chancery, is, not for any superior fitness may apply for a decree against me to per- of that Court itself, but because of its apform my agreement, but till then his claims pendages, the Masters' Office, without are not recognised in a Court of Common which it would be no better than the Law. If an injunction be brought, the King's-bench to manage even long trusts, expenses are further multiplied. Why, I chronic cases, as they have been termed, ask, should not the agreement, such as I (though every suit in Equity might be thus have described, be as good as a lease ; named). Let the Court of King's-bench when, in substance, it is the very same have an equal number of Masters—let thing, and only wants a word added or Arbitrators be publicly appointed, to whom left out to make it the same in legal effect parties may refer before any expense has too? A case illustrative of this subject, been incurred, as they do now after all

the bill has been run up—nay, to whom far too remarkable to have been inserted : they may go without even consulting an “By this means a statute made upon great attorney—and if this machinery be found consideration, introduced in a solemn and not enough effectually and properly to pompous manner, by this strict construc- despatch the business of the Court, let its tion has had no other effect than to add at machinery be increased, and sure I am it most three words to a conveyance."- would be the cheapest and most powerful 1 Atk. 591. The remark nearly in the that ever was set up. It would do away same words is adopted by Blackstone, who with the ridiculous importance attached to cites lord Hardwicke in confirmation of a few words of conveyance;—it would it. --2 Com, 336,

oust the jurisdiction of the Court of Chan

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