they certainly are, though I could wish we were not given to so much Pharisaical praising of them; but if, while others, who do more and talk less, go on improving their laws, we stand still, and suffer all our worst abuses to continue, we shall soon cease to be respected by our neighbours, or to receive any praises save those we are so ready to lavish upon ourselves.*

i. And now, having thus far cleared the way forexamining the proceedings in our Courts of Justice, the first enquiry that meets us is, by what means Unnecessary Litigation may be Prevented; in other words, suits unjustly and frivolously brought, and wrongfully defended, by oppressive or intemperate parties. I shall here, as under almost all the other heads of the subject, begin by laying down what I take to be the sound principles of legislation applicable to the point, and then comparing with these the provisions actually adopted by our jurisprudence. The first and most obvious step is, to remove the encouragement given to rich and litigious suitors, by lessening the expense of all legal proceedings; and I would put an end to all harassing and unjust defences, by encouraging expedition. Next, I would not allow of any action or proceeding which only profits the court and the practitioners, and the object of which is always granted as a mere matter of course; all things should be considered as done at once and for nothing, which may be now done on a simple application to the Court with some delay and expense. Thirdly, no party should be sent to two courts where one is able to afford him his whole remedy; nor to a dear and bad Court, when he can elsewhere have a cheaper and a

These inequalities in the Crown law, between the Crown and the subject, still exist.

better remedy; nor should any one be obliged to come twice over to the same Court for different portions of his remedy, which he might have all in one proceeding. Fourthly, whenever a strong presumption of right appears on the part of a plaintiff, the burden of disputing his claim should be thrown on the defendant. This I would extend to such cases as bills of exchange, bonds, mortgages, and other such securities. In those cases I think the plaintiff should be allowed to have his judgment, upon due notice given, unless good cause be, in the first instance, shown to the contrary, and security given to prosecute a suit for setting the instrument aside.* This is a mode well known in the law of Scotland, and would put an end to all those undefended causes, which are now attended with such great and useless expense, as well as injurious delay to the parties and the public. Fifthly, I would suggest, that in all cases where future suits are to be apprehended, proceedings might be adopted immediately to raise the question, and quiet the title. The law on this head, also, is very different in the two parts of the island. In England, it is not possible to have the opinion of any court, until the parties are actually engaged in a lawsuit, opportunities for which may very frequently not occur until the witnesses to prove a case may be dead, or an infant, or a person living abroad and incapable of well defending his right, has come into possession. But the Scotch law furnishes a kind of action, the adoption of which may be productive of the greatest benefit, as I have once and again heard Lord Eldon hint in the House of Lords. I know very well that here we may file a Bill for perpetuat

• This important improvement has since been made, but the declaratory action has not yet been introduced.

ing testimony, but there must be an actual vested right in the party instituting the suit; and the proceeding is, besides, so cumbrous, as rarely to be used. The Scotch law, on the contrary, permits a Declaratory Action to be instituted by the party in possession or expectancy, quia timet, and enables him to make all whose claims he dreads parties, so as to obtain a decision of the question immediately. This is, of course, and very properly, at the expense of him who brings forward the suit for his own interest, unless where a very obvious benefit arises to the other party; for in Scotland they have nothing like our statute of Gloucester, and costs are always in the discretion of the Court, as with us in equity. Sixthly, I would abolish all obsolete proceedings, which serve only as a trap to the unwary, or tools in the hands of litigious and dishonest parties, and lie hid or unheeded until, unexpectedly, they are brought forth to work injustice. For an instance, I will name Wager of Law, a defence which may be set up in answer to an action of detinue, or of debt on simple contract. This is another of the remains of the old system. The defendant has only to swear that he does not owe the sum of money claimed by the plaintiff, and bring eleven others to swear that they believe him; and a defendant would certainly be badly off if he could not find out so many persons to do this kind office for him, as he needs only bring those who know him, but know nothing at all of the circumstances, for the less they know, the more ready will they be to swear they believe their friend. He has only to place them on opposite sides, at the end of the table (for the wisdom of past ages hath

*

The new rules of pleading and practice have removed these evils.

carefully fixed the stations which the parties are to occupy pending this "solempnity"), get them to swear, and there is an end at once of the action. It is true that pleas of this kind are seldom pleaded, though it was done some time ago in the Common Pleas ; and the oldest practitioners there, not being acquainted with the plea, were about demurring to it, when it was discovered to be a law wager well pleaded, and a complete good defence in law, though the practice was obsolete.

Now, these being the fundamental Principles that should guide us on this head, nothing can depart more widely from them than our Practice, and nothing can be more easy than making it conform to them. In the first place, without throwing away a thought upon the pain which I should necessarily inflict upon some of my learned friends much wedded to such lore, without caring a rush for the quantity of curious learning which would thus be thrown to waste, or dropping a tear over the musty records which must be swept away, I would abolish at once the whole doctrine and procedure of Fines and Recoveries.* I hope I may not offend the ears of my respected brethren the conveyancers; but I must say, that if ever there was an absurdity not to be tolerated, it is those fictitious suits, at any time, but, above all, in the present state of society.

I wish to make myself understood, for I see by the countenances of some gentlemen that they do not quite comprehend the whole absurdity of the law respecting Fines and Recoveries. I do not by any means wish to interfere with the power of making, or of barring entails; I consider the English law as

These have now been entirely abolished.

hitting very happily the just medium between too great strictness and too great latitude, in the disposition of landed property; sufficient restraints upon perpetuities, upon endless settlements, are provided, to allow a free commerce in land, as far as that is consistent with the interests of agriculture, and the exigencies of our mixed constitution; while as much power is given of annexing estates to families, as may prevent a minute division of property, and preserve the aristocratic branch of the Government. With the substance of our law of entail, then, I have no wish to meddle; all I desire is, to abolish the ridiculous machinery by which fines are levied and recoveries suffered. Every gentleman knows that if he has an estate in fee he can sell it, or bestow it in any way he may please, but if he has an estate tail, to which he succeeds in the long vacation, he can go, on the first day of Michaelmas Term, and levy a fine, which destroys the expectant rights of the issue in tail; or he may, by means of a recovery, get rid of those rights and of all remainders over. He can thus, by going through certain mere forms, make himself absolute master of his estate, and do with it as he pleases. But this must be done through the Court of Common Pleas, at certain seasons of the and why should there exist a necessity for going there? Why not, if it be necessary, pay the fines which are due, without going there at all? I, the other day, asked this question of some learned friends,--Why force tenants in tail into court, for mere form's sake? They laughed at my simplicity, and said, "All this was asked a hundred years ago; there is no necessity for the proceeding, only to keep up the payment of the King's silver, alienation fines, and other duties." In case of bankruptcy, the necessity for those forms is

year;