The British Press; or, Morning Literary Advertiser.
London, England, 1826-05-19 00:00:00

they were not introduced idly, but for the purpose of showing how
absolutely necessary it wars tee the Commissioners to direct their
inquiry to the points they had done, in order to come to any advan.
lagenue practical conclusion. Ile did not mean to enter at full
length into the details of the proceedings of the Commissionem,.
but would draw the attention of the House to the principal points
to which they had directed their attention. The Commissioners
began very wisely with the euhpeens requiring attendance. It
was complained that this stibricena was so worded that no unlet.
tered man could understand what was demanded of him by it,
The Commissioners saw no reason why this practice should con.
tinue, and recommendsd that it should be so arranged, that the
subseena should clearly and distinctly inform the person to whom
it was directed, what it was the Court wanted him to do. It was
represerreti that unnecessary delays took place as to appearance,
In the town the time allowed for an appearance was short, but If
the perann subpreeaed resided in the country it was long. Undo'
' the present practice. in the latter ease, nearly a half year might ex-.
tedr andded
thatpire thheenteeimaanaannopeweadranfic,er waasrpemseradhec.eaTalrauti:dombratiaists.hiorneaelias
that appeanmees should be entered in all cases as Noon as possible.
The appearance of a person in the country was not to be immediate.
like that of persons in town, but it was to be on a certain specified
day. rniler the present practice, if the party did not appear,. he
was liable to be taken into civeody of the Sheriff, and thrown into
prison. A writ of Habeas Corpus might then issue, and if the
party refitsed to enter an appearenee, he might be thrown •into the
Sleet. After two subsequent proceedings, he might be brought to
the bar, and an appearance entered by order of the Court. The
Commissioners conceived that all these proceedings were untie.
cea.ary, and might be dispensed with, and they recommended that
all this delay and expense shotild be saved, and that after a party
has been returned in custody if no appearance had been Obtain
an appearance should be taken, as at common law. The next stage
was the time allowed for putting in an answer after an appearance.
There.was at present a certain time allowed for putting in an an-
swer. Now it was important that this certain time should not be
too long. The Commissioners considered that the answer should
be put in in the shortest possible time, consistent with the nature
of the case, and that ten weeks should be allowed to put in as
answer, if the party resided in the country end eight if in town.
There was another point-in which much delay occurred, and to'
`which the attention of the Commissioners had been directed. Ace
cording to the present practice, when the defendant neglected to put
In his answer at the end of the time allowed by the Court, a writ of
habeas corpus was iseued, and the defendant was brought up to
the bar of the Court. But he might still refuse to put in his an.
ever, whereupon an alias habeas corpus 'need ; an if he should
yet refuse, a pluriea habeas corpus, as it was called, was iraued.-.-
Should the defendant refuse after all to put in his answer, he was
remanded, and at last was called up to attend at the bar of the
Court upon an alias pluries ; and if be still persisted not to obey the
subpen& by filing an answer, the bill was taken against him pro
confh*o. Every body must perceive that. all this machinery was
unnecessary. Why should the defendant be called up repeatedly
to the bar of the Court, merely to repeat his former refueal to obey
the oubpeena. The Commissioners had therefore fonsidered what
was the. shorten time proper to be allowed to the defendant, in
which to file his answer; and having fixed that time, if he should
refuse to put in hit answer within the period prescribed, then they
said that the bill ought to be taken against him pro confilso.--
A Again, if the defendant was not taken upon the habeas corpus, and
the Sheriff returned upon the writ, non eel inventor, then there CMG
another piece of machinery into play. Upon the return of non est
inoentns, an attachment was issued, then proclamations were made,
then a Sergeant at Arms, and finally a sequestration. However
proper these things might have been formerly, they were obvious!,
unnecessary at present; the Commissioners therefore, had struck
out most of tibia machinery,. but at the same time taking care to give
the party as much time as Justice required, in order that he might
not Ignorantly disobey the order of the ,Court. If, after all,
the defendant did not make his appearance, then it was that
the bill was taken pro confirm. But let it be suppeeo
that the defendant had put in his answer. It was we
known that the answers of defendants were continually evasive.
This being so, the plaintiff must of necessity have the power of
compelling the defendant to give clear and specific answers to the.
questions put by him. If, therefore, the answer was evasive and in.
sufficient, the consequence was that the plaintiff had a right to ex-
cept to it for insufficiency. This every person must be aware ma ttC
essential and most important stage in the proceedings. News gess
cording to the present course of practice in the Court of Chinon", ,
what was it the defendant had the power to do on these exceptions
being made? Why, he might contend that his answer was an
dent; and upon this question an argument took place before one of
the Masters of the Court, who let it be supposed should decide
that it was insufficient. The defendant might then immediately
appeal to the Vice.Chaneellor. Having got the cane set dime foe
argument, perhaps three or four tenns intervened before it came on
for hearing. Finally, it was argued, and the Vice-Chancellor (he
would suppose) confirmed the 3Taster's report. The defendant
was still not satisfied, and he therefore might appeal from the Vice.
Chancellor's deciaion to the Lord Chancellor; and after another
considerable delay, the question at length came on to be argued, and
the Lord Chancellcr, he would suppose, confirmed the decision of
the inferior judge, pronouncing that the answer was defective.
But this was by no means final, for the defendant might yet
appeal to the House of Lords, and a year, or a year and a half,
might elapse before the question was decided by their Lordships,
The decision at length, perhaps, of their Lordships, was, that the
answer was insufficient, and that a further answer must be put in.
The defendant had the same time to pat in his further answer
as he had to put in his original answer. Here then was a new
source of delay. The further answer might still be insufficient, the
plaintiff might again file his exceptions, the question might again
be argued before the Master, and. in short, the whole thing might
to succession go through the same round as he had already de.
scribed. Now, he did not mean to say that defendants always
availed themselves of this source of delay, but they unquestionably
had, according to the present practice, the power to do so. Per.
haps, after the seaand round of appeals, the answer was still pro.
nounced insufficient, and that a third answer must be put in. Now
it was not imperative that a third answer should be sufficient ; but
the defendant might, if he pleased, put in a third answer intention.
ally Insufficient; and again for the third time might the same round
of arguments, decisions, and appeals, be observed. It was only
after it had been for the third time decided that the answer was in.
sufficient, that the defendant was, at the fourth time, bound to put
in a good and sufficient answer. From what he had stated to the
House it was impossible not to perceive that all these things led to
great and vexatious delays, and to great eirtaenee. All these venom;
circumstances having engaged the attention of the Commissioners,
they had considered them to afford a very proper ground for improve-
ment. This course of proceedings upon which he was now comment-
ing had, however, existed ever since the time of Lord Bacon, duelist
the long period of Lord Chancellor Nottingham, of Lord fiemees,
'Lord Hedwicke, and Lord Camden, down to the present time. The
Commissioners, after the greatest attention, had decided to emus., •
mend that the decision of the Master upon the sufficiency or inn&
ficiency of the answer should be final. But they did not stop there.,
for after the Master should have decided that the plaintiff's exeep...
tions to the defendant's answer ought to be allowed, and that the
answer was insufficient, they had made another determination,
namely, that the Master should prescribe the time when the further
answer should be put in. This was also directed with regard to the
exceptions that might be made to the second answer. The Com.
missioners had further determined, that the third answer should
be conclusive and satisfactory, or otherwise that the defondant
should be committed Into custody. They had therefore abridged
the time of the proceedings as much as was consistent with this
moat Important part of the progress of the cause. He was aware
that there existed a great diversity of opinion upon this point,
namely, whether the Master's decision should be final. It was,
however, not now material to consider that question. The House
would have an opportunity to discuss it at a future atage of the
Bill which he proposed to introduce. But he would repeat, that
the determination of the Commissioners, after a great deal of
anxious consideration, was, that the decision of the Master should
be final, unless the Master, from any circumstances of intricacy, or
from any other cause, should be of opinion that it was plotter
that it should be referred to a Judge belonging to a higher tri-
bunal. With this check and reservation, the Commissioners bad
determined, that, in ordinary cases, the decision of the Muter
should be final on the subject. He would beg the liouse to mark
how much the Commissioners had, up to this potnt, abridged the
delay that at present occurred. He regretted to occupy the anis.
tion of the House with eo much detail, but he "assure that if
' Ciehtlemen would go into them as be had done, they would pee.
ceive 'and be convinced that the Commissioners could not have
I done more than they had effected. He would now proceed to an.
other point. It sometimes happened that after au answer was poi
in, the cause was substantially at an end. The plaintiff might
be satisfied that he could not proceed further, as the an-
swer might be complete and decisive with respect to the
whole merits of the case. What was the course that was then
pursued, according to the present practice? After the cause was
sibetantially over, when the plaintiff could not take another step
in it, yet the Bill could not be dismissed for three quarters of a
year, and the defendant could not obtain relief from it, or remu.
neration for the costs to which Ire had been exposed. But even at the
end of the three quarters of a year, any order for dismissal was not
conclusive upon the plaintiff; for after the expiration of that time
he might, ifhe thought proper, take a further step, by which his
bill might be prevented from being dismissed for Om quarters of
a year more. All that he had to do was to file a replication, which
would create"' further delay of half a year; making it in the wholes
year and a half, after the cause was substantially over, before the
bill could be dismissed for want of prosecution. Then, after the
application was made for the dismissal of the bill, all that the
plaintiff had to say in reply was," I undertake to speed the cause,"
and he obtained the time of another term before his hill was finally
dismissed. This surely was a caste that called for a remedy. (Hear,
hear, hear). He admitted it, and every body must admit it.
dttnhhliaed:ardultpiniiisi a
io
tfaopoitatunhneinnutflis:erehwa
frinaeabiketer
report
referencete
dertoi Commissioners
t.asm
.(Hear, hear). He was merely stating, but rather more in detail
,lersortcatahecasouLlluiusetielh,ahttLedwhtTereasthbei:cyaeleselecul_
yrecoveerietheeeptetdy
ad beopidiee.inimieleon. that and
bas.iuwnh:ismabmterti,salite:dettlisniessita.ted4hreo(r,,athmey.

etibetantWiliemled, ant that the Commissioners had directed
attentionn
gross
ot. tot h
e remedy
cuilat.dli
ca,
the
ht v:domie
dla.ahemrntent a
saonerdl Ivoneeeritr,rieal tie
dc.ik,ieti,erehrte
atieawchtrsiaTeaun,nr,nethwesaocedtatb,anesicgenayro
Commissioner,
tyboaolm,te4nnawht
hisdteme,tramii
otshtete
consistent
inv:dheite
tin:
ieww,tr iwpihhgeteiwahan
deasdlibl;.‘ d
hrueh they had also attended. Alter the delft), had occurred in the p.eo
party was upon the eve of haring the Bill dismiesed, all then' the
party
had to do was to any—" I am advised to amentrlhe
and upon the payment only of nominal costs, amounting
to a few shillings, the cause might by this amendment be
fact begun de nava, and the whole intricate machinery he had described be worked over again. And to thin right of amendmentd
there was no limitation, for the party had an indefinite powe°,
delaying the cause, provided, at the proper stage, he took repo.-
ahterirtmemrsietniheelf.etocatsluamsyet, the power of ameut!ment should be Laken efts;
had fixed at the replication ; ambling of which they ream
mended that no amendment shouldn't allowed, without the ':,m;
should show some substantial grounds why the Court should sUn,P'
him to amend. The power of amendment, bait observed, was a mag,
emeatial power to the plaintiff, because all amendments were made
in consequence of the answer that was filed, which answer meth
dff
ihbliceiilscolu.lositdheaßrteusomtthotmeileteplwafachartisystsnbietessishi•
bill
should
which
therefore
necessary
er
abused. As a matter of couree, then, the plaintiff ought to have
right to amend once ; bin after that, the Commissioners con.
sidered that he ought not to he allowed to do so, sitenn,
making out a proper case before the Court. But teen
was another most essential check given by the Commissioner,
to the delay that it was at present to be complained
as of frequent recurrence. As the practice at present stood. the
plaintiff was allowed to amend without paying costs. But the Cure.
misnioners thought that the plaintiffs should in all cseel pay ay
costs of the amendment. This they thought would operate is
strong check upon patties in making amendments unnecessarily,
and with a view only to obtain time. Ile beeped the House not to
misunderstand him on this subject. He had pointed out the de.
lays that might take place in a suit. If the party was cis
to be vexatious, he might make use of these various modes of pen.
evading as instruments for the purpose of effecting an injustice.
But he did not mean to say that this was very frequently done.
there were, he knew, instances where this power had been Ter;
grossly abuse:it but if only rine instance of injustice had occurred,
IL was sufficient ground for the House to em a
emceed upon; and
eufficlent reason why this machinery should be put an end to by
the House, if they saw that it could be dune without injury
to the system of equity that it was essential to uphold.
He had thus brought the cause down to the lame, when the ell
and answer was perfect, and had endeavoured to thew what the
Commissioners had done to prevent ;he delay. Nothing mom
could have been effected ; the subject would not admit of more
being done, if they were agreed that the jurisdiction of the Court
ought to exist; and he would again repeat, that in that case the
Commissioners could not have done more than they had effected.
Be was of opinion that they had pursued a wise course, and had
done properly, and was persuaded that every person who at all
considered the subject would agree with him in that opinion. The
Hon. and Learned Member for Caine (Mr. Abercromby) must
approve the course pursued by the Commissioners, because he
remembered that on a former occasion that Hon. Member mid
that he was satisfied a great deal of good might be done by the
Special Committee proposed by the Hon. and Learned Gentleman
opposite (Mr. Williams), in abridging the proceedings of the cute
up to the time of the Issue, and that it ought to be a direction to
the Committee to pay attention to this subject ; that he hod beta
informed by many Gentlemen conversant with Chancery practice,
that much delay unnecessarily took place in the early stages of the
suit, and that therefore, in his opinion, no subject was more
worthy to engage the attention of the Committee. The Commie.
stoners had proceeded precisely in the course thus chalked out be
the Honourable and Learned Ventleman, and it appeared to
bins that they had done it in such a manner as to deserve
.the support of the House. If the House would indulge
him, he would state the whole course of a Chancery suit in
a very few words. (Hear, hear.) The plaintiff first made his
complaint by filing a Bill, an answer to which was pat in. The
' parties might, if they thought proper, go to a hearing upon the
bill and answer, but either party might have evidence ex.
amined. That evidence was taken before an Examiner, in writing,
and then the case—bill, answer. and evidence--went before the
Judge. The Judge then heard the case, in the course of which it
very frequently turned out that there were questions of accounte end
of debts to be ascertained ; and a variety of other points that could
woe be well investigated in a Court of Equity, frequently arose.
The Judge, therefore, would direct those points to be referred to the
consideration of the Master. The Master then proceeded to inert.
tigate these subjects, would have the witnesses before him, and
make his report upon the points to the Judge; and then, after alt
this, the cause was set down for find :rearing, and the Judge, after
the question had been argued, would make his decision. Such was
the course of a Chancery suit. He would now revert to that stage
of the proceedings, up to which he had traced the course at present
pursued in a suit at equity. In the detail he had given he had pur.
sued the cause up to the issue. Another important point that oc-
curred was the evidence. This was a subject which he was quite
sure had engaged the attention of his Hon. and Learned Friend
(Mr. Williams), and very justly and properly too. When the
parties were at issue, and evidence was deemed expedient, the wit.
nesse' were taken before the Examiner, and there examined area
long intertogramies previously prepared, and not viva wee before
the parties, as was the case at common law. It was formerly se
important inquiry whether these examinations ought not to be car-
ried on viva vote" and he confessed that on that oreasion all his pre.
judices were against the course of proceeding pursued by the Court
of Chancery. He remembered to have said, Cast having ead so
much experience of the advantage of viva vote mooeedises over
any other course that could be adopted, he could not understand,
tire reason why a different system should be pursued in a court o(
equity—why, if it were necessary to ascertain facts, with a stew
to the ultimate decision of a cause, a vivo veer examination should
not be allowed in that court as in the courts of common law. He,
however, was now ready to declare that, after having heard the evi-
dence before the Commissioners, end after the fullest consele.
ration, he had et length become a comsat to the practice
that at present prevailed in the Court of Chancery t and he thought
that to change twat system foe any other, would not only be tin.
attended with any beneficial -results, but that it would be predue.
tiye of very great and serious injury. For in the lieu place (always
speaking with reference to the principle he had laid down in the bo.
ginning of his address to the House, as to the necessity of opal:
log the present jurisdiction of ,the lend ebiltleellOr, the evidevee
could not by possibilieybe beard before the Judge who was to de.
tide themuse ; that was, it could not be so heard, without en.
limey new modelling the Court, and doubling the number of the,
Judges ; therefore, unless the House were determined wpm is-
tircly altering the whole system of the Court of Equity, no adios.
tage could arise from the proposed alteration in the mode of taking
evidence. If the party who was ultimately to decide was not d.
lowed to hear the evidence, but that it wit to be taken by some
either Individual, almost all the benefit of viva voce exam,nattoa
would be lost. He was quite sure that if evidence were to be so
taken, and so reported to the Judge who was to decide, that when.
ever there was any thing like a balance of conflicting testimony,
it would never be allowed to lie decisive of the case but
the Court would still send the cause to be tried by a Jury;
so that, without gaining any advantage by the change, a great eddi.
tional expense would be incurred, and a much longer series of ex.
amination entered into; for there would arise the question of ad.
Missibility of witnesses before the Judge below, which of itseli
would produce great delay in the cause. He had had opportunity
of seeing evidence of this kind produced before a Judge, which
had been taken before Commissioners of Bankrupt; and what
with the examinations, and croeseexaminations of Counsel, anil the
adjournments from day to day, with the calling in of fresh wit.
messes to corroborate or rebut evidence that had been already
given, the system pursued led to an interminable length and to
inextricable confusion, upon which no satisfactory decision could
be given. But this course would be continued almost perpetually,
for the parties would, by supplementary evidence, hare the orpor-
tunity of leniehening the cause in a variety of ways, to which no
assignable limit could be given. Plausible, therefore, as the pro-
position for any change might in the first instance appear, and
which to his mind and experience it did Appear to be; yet when tl,e
subject was sifted and examined, it would be discovered, as he was
now convinced, that its adoption would be productive of no ad.
vantage,
Ib:swt,aeonretrrihearconkabtime contrary,
before the Commissioners, and who was of great professional ex.
pertence at the Chancery bar (he alluded to Mr. Bell,
who was now retired from the profession) upon being caked whether
stated. personuetiv e wohroalbladthebe evils
examinedh e had
be was ever dissatisfied with the decision of the Judge upon e.
question of fact in the course of his experience in the Court of
Chancery, he replied that lie never remembers such an instance
*here the Judge undertook to decide the question. But he added,
whenever it came to a matter of doubt and measure of degree
of credit due to the evidence, an issue was always directed:
This was the result of the experience of a most acute and inters
Sett mind. It was a remarkable circumstance that this question
• bed been discussed in another country. The same topics's!:
'paned, the same view of the case taken, and the same ennelo.d
drawn. According to the institution of the state of New York. et,
great alterations could be made either in the constitution of the
state, or in the administration of justice, by the ordinary legislative
enactments ; but if it was proposed to make any great alteration °
either of those cases a convention was entered for that pitrPoite:
• •
Four or five years ago a convention was called to Inquire
r
state of the laws. At New York the common law
country) prevailed, modified by recent statutes of that state. Th
Court of Chancery alio existed, and was established precisely °P°ll
the name system with that of this country. A proposition was
made at the convention to examine into the administration dilute*
In the Courts of Common law and Court of Chancery. On this
examination taking place it was proposed to abolish the Coat_
Chancery, or ?Atha to unite it with the Common Law Courts. As
Hon. Member of the Convention discussed the proposition great
length, and with considerable talent and ingenuity; hut it was at
last decided that it was more wise, more expedient, and more
dent, to continue the system as it at present existed ; and it rs
also decided that the examination of witnesses In the Court to
should be conducted by interrogatories, and not vita
(similamtoto
_ thisInc
e
. Judge who had presided in that Court a great many rum,
great talent, had delivered his opinion on that neat"?'
he (the Attonsey.Ommeral) would mad, bicause,!!
i in so remarkable a degree with the opinion of the Brat
he had just before mentioned—Me Bell. The name of
Learned Judge was Kemp, and he stated that " during the
the establishment of English jurisprudence in the suit!
fork, the psesent mode of examinstion had prevailed;
during the period he bad had the honour to
the Court of Equity, be did not wake& If!
complaint, cc that it wag wog gongind that yaw

r

I delay thus afforded le the_ plaintiff was but reasonable. And here Chancery al
i he would beg WINO ila Weft this obserfration, that there was a con.. voce. AJu
siderable difference WWlea the proceedings in a suit in Courts of and of grea
Equity and as aetlips ateetinsis law. In common law there were but which he
one or twoplaia Lehi telniheress in Coons of Equity the coincided ii
issues were ' y was often involved, a great authority h
1 many rWeerent Interests were coneerned, the Learner
and altiZeligt dft&il were to be arienged and &tided period of tl
' "Pen ; Mel Wagaidr:SelhParison b, Woods between the of New Ye
1 duration ow in at cammaa law and a sit is a (Wart of and— that
1:1118.12 He bad dast*party tealtlimpies a hilt dls. peed& in
ter ilittre- Usk epez sod shift-Immo abeam mai had a basin/ a o