The Sun.
London, England, 1830-04-09 00:00:00

:NEW POWERS.

In our former Report we adverted to the enor-
mous expence and inconvenience which are occa-
sioned by requiring the personal attendance of wit-
nesses at the trial, for the proof of facts which there
is no real ground to dispute; and stated our expec-
tation that the body:of parol testimony might be ma-
terially diminished by confining the questions on the
record to precise issues, and by the adoption of
proceedings for establishing the proof of certain
matters previously to trial.

To both these means of effecting an object so
important we have addressed our earnest attention.
Our views respecting the former will be explained
in their proper place in the course of the present
report. We shall only observe here, that it is not
in its nature applicable to actions for the recovery of
land, since no precise issues can be joined where no
special allegations of title are introduced. It is con-
sequently the more necessary that every party to a
suit of this description should be provided, at the
least expense, with all such aids for establishing his
case as can be afforded to him consistently with
justice to his adversary.
We have to submit to your Majesty several pro-
ceedings of a summary or equitable nature, which if
introduced into the practice of the Courts of West-
minster Hall, would tend, as it appears to us, ma-
terially to diminish both the expellee and vexation
to which the suitors of those Courts are now ex-

posed.
These proceedings, if adopted, will be available in
all forms of action ; and one of them, at least, may
be expected to afford advantages peculiarly applicable
to pleas of land.
No expence is more uselessly incurred, nor is any
attendance more vexatiously required, than those
which in the great majority of cases are occasioned
by the mode of proving written documents. Where
nothing is admitted by the form of pleading, every
matter in writing, whatever be its nature, must be
proved by the oral testimony of some witness, who
must be an attesting witness if there happen to be
one, unless the document be 30 years old, or his
presence be dispensed with upon grounds to be
proved by some other witness or witnesses, The
distance of the place of trial from the residence of
the persons whose testimony is required is often
found greatly to augment their personal inconveni-
ence and his costs of parties, both which are also
frequently enhanced to an intolerable degree by a
protracted attendance for several days until the time
for trial of the cause arrives. Though every docu-
ment may be known to both parties, and free from
all suspicion, yet the personal attendance of every
witness necessary to the establishment by strict
proof of each of them is indispensable, lest advan-
tage should be taken of his absence to defeat the
cause.

[A plan for the verification of documents is then
proposed.]
It would be very desirable that the principle of
the measure should be extended in pleas of land,
and other actions in which general pleadings are
allowed, to all such distinct facts as might, if spe-
cial pleading were employed, be made the subjects
of special allegation. We have bestowed much
time in endeavouring to frame regulations applicable
to facts of this description ; and little difficulty
would be experienced in doing this, if the facts to
be proposed for admission were always such as lie
within the knowledge of the party to whom the pro-
posal is made, &c.
[A plan is then proposed for the examination of
parties o❑ interrogatories, by way of discovery.]
Discovery obtained by answer in Equity may
serve the purpose of enabling a party to ascertain
the existence of facts which he should endeavour to
prove, or which it may be necessary for him to re-
but; but as the party answering is able to give his
own colouring to every admission, by dextrously in-
traducing into his answer matter of explanation or
qualification, and as the rule of law is peremptory
that if any part be read against him at the trial he
may insist that the whole be read, the matter con-
tained in the answer can very seldom be offered in
evidence with any benefit to his adversary, &c.
It is, therefore, proposed, that any plaintiff after
declaration, and any defendant after plea, shall be al-
lowed to deliver interrogatories for the discovery of
facts and documents material to the support and de-
fence of the suit, to be answered on oath by the
adverse party, if resident with the jurisdiction of the
Court.

That to all such interrogatories shall be annexed
an affidavit of the interrogating party himself, and
his attorney or agent, stating that the deponents are
advised and believe that the party interrogating will
derive material benefit in the !action from the dis-
covery which he seeks, that, if plaintiff, he has a
good cause of action, or, if defendant, a good defence
upon the merits; and if the application be made on
the part of the defendant, stating positively that the
discovery is not sought for the purpose of delay;
provided, that if the party himself should be pre-
vented by unavoidable circumstances from making
such affidavit, it may be made by his attorney or
agent alone% who shall therein state the eireum
stances by which the party is prevented from join-
ing; and if they shall appear to a Judge to be satis-
factory, he
may allow such affidavit to be annexed
to the interrogatories, in lieu of the joint affidavit.
It is proposed that the interrogating party shall
have the option of requiring either an answer in
writing, or on personal examination before an officer
of the Court, or other person to be appointed for
that purpose by order of a Judge.
• • • • • • •
With respect to reference to arbitration by direc-
tion of the Court, in matters of mutual account, the
Commissioners say much expellee is incurred by
parties, and much of the public time fruitlessly
occupied in the attempt to try matters of account

in the Courts of Law. The method of trial by
Jury, however well adapted to the determination of
questions of fact in general, is peculiarly ill suited
to the minute and patient investigation Necessary to
ascertain the balance of an account involving various
items on both sides. Amongst our ancient forms of
action is one provided for the express purpose of
enabling the Courts of Law to authorise the ex-
amination of such matters' by auditors appointed
under their authority ; but the mode oi! proceeding
in an action of account has been found so inconve-
nient in practice, that this remedy has quite fallen
into disuse ; and the Courts of Equity, in
consequence of the inadequacy of relief afforded
by the Courts of Law, have long exercised
a jurisdiction over matters of mutual account ;
and that even in cases where the items constituting
the account are founded on obligations purely legal.
On such legal obligations, however, actions (though
not in the form of account) are still daily prosecuted
in the Courts of Law, and legal rights of set-off are
therein brought forward. But these Courts possess
no authority to stop the ordinary progress of such
suits for the purpose of subjecting the matters its
dispute to the investigation of a more convenient tri-
bunal. Unless the parties voluntarily adopt an ar-
rangement for that purpose, the cause proceeds to
trial with a certainty, in many instances, that it will
not be tried. A reference is proposed by the Judge,
and recommended by the Counsel; but the patties,
having made expensive preparations for trial, are
unwilling to forego the right of obtaining an imme-
diate decision; and as the Judge has no power to
enforce compliance with his proposal, the cause is
suffered to go on till it becomes at length manifest
that no satisfactory verdict can be given by the
Jury, and a consent to submit to arbitration is rather
extorted than given. In such a case the interest of
both parties would be much better consulted if the
Judge were invested with express authority to pre-
scribe, in the first instance, a measure to which as-
sent cannot ultimately be refused. * * *
It is, therefore, proposed that power should be
vested in the Courts of Law and the several Judges,
upon the application of either party for that purpose,
at any time after issue joined and before trial, to di-
rect mere matters of account to be referred to arbi-
tra;ion, if it appears upon affidavit to the satisfaction
of such Cot ri or Judge that the matters rJposed to
be referred are of this description, and no sufficient
cause be shown to the contrary; authority being at
the same time given to the Court or Judge to order
the statement of a case for the opinion of the Court,
or the trial of any issues, if the nature of any parti-
cular items should make it expedient so to do.
It appears to us, however, that in any case in
which a reference to arbitration shall be directed by
any rule of Court or order of a Judge, without the
consent of both parties, the award of the arbitrator
should be subject to the revision of the Court in
banco, not only on the ground of personal misconduct
of the arbitrator, but on the ground of any mistake,
in point of law, whether appearing on the face of
the award or not, or of such gross error in point of
fact as, in the case of a verdict upon a matter pro-
perly left to the decision of a Jury, would require
the interference of the Court. * *
THE GENERAL ISSUE.

One of the most important questions which has
presented itself in the course of our inquiries is,
whether it is expedient to continue to any, and to
what extent, the use of that kind of plea denominated
the General Issue ? Under this plea, which is, in its
shape, a summary form of denial of the allegations
in the declaration, or some principal part of them, a
defendant is at present allowed, in certain actions, to
put the plaintiff to the proof of every thing alleged
in the declaration, and, in some, not only to do this,
but at the same time prove, in his own defence, al-
most any kind of matter in confession and avoid-
ance; that is, matter which, admitting the truth of
the plaintiff's allegations, tend to repel or obviate
their effect, &c.

We propose then that non assumpsit shall be no
plea in actions of indebitatus assumpsit, or in any
case of assumpsit where the promise would be suffi-
ciently implied by law upon the facts stated in the
declaration ; that in other cases it may be used, but
no defence shall be admissible under it, except a de-
nial of the promise itself in point of fact; that in
indebitatus assumpsit the form of denial shall be as
" That the defendant denies the mat-
ters of fact whereby the said debt is supposed to ac-
crue, and of this he puts himself upon the country ;"
and that under this plea no defence shall be admis-
sible, except a denial of the goods sold or money
lent, &c., in point of fact; and that, in every species
of assumpsit, all matters in confession and avoidance,
including not only those by way of discharge, but
those which show the transaction to be either
void or voidable in point of law, shall be especially
pleaded.
In debt on specialty and covenant we propose
that where non est facto nt is pleaded no defence
shall be admissible under it, but the denial of the
execution of such a deed in point of fact ; that as
other defences shall be especially pleaded, including
matters which make the deed absolutely void, as
well as these which make it voidable; that cover-
ture therefore, or lunacy, or erasure by the obligee,
shall be especially pleaded as well as infancy or
duress.

I❑ debt on simple contract we would recommend
that nil debet should be no plea, but that the same
form of denial should be used as already suggested
for indebitatus assunipsit ; and that all defences in
confession and avoidance should be specially pleaded
according to the same principles as in the former
actions.

In actions of trespass on the case cx delicto, we
propose that not guilty shall be no plea ; that all
pleas in denial shall take issue specifically upon
some particular matters of fact alleged in the de-
claration, and that all matters in confession and
avoidance shall be specially pleaded; that in trover,
if the defendant pleads in denial, he shall deny either
that the goods were the property of the plaintiff, or
that the defendant converted them, and may plead
these pleas either singly or together; and that
under such denial he shall contest the matter of fact
only ; and that matter tending to justify the con-
version of the plaintiff's goods (as in the case of
lien) shall be pleaded.
In trespass we would leave the plea of not guilty
upon its present footing, subject, perhaps, to some
partial alteration, on the expediency of which we
have not been able fully to decide, and the discus-
sion of which we beg leave to postpone till we ar-
rive at the consideration of the proceedings in par-
ticular actions.

In replevin no alteration as to the effect of the
plea of non cepit appears to be required, tin r have
we any to suggest with respect to the plea of ne
disturba pas, in genre impedd. * *
By the law of England that reparation is in most
cases made by a sum of money assessed by ii Jury,
and even in those cases in which the thing itself in
disrepute is recovered, as in pare impedit, dwer,
actions for recovery of lands, and, perhaps, denture,
reparation for detention and damage is made by a
sum of money.
g done affects
only . We think,
o. ,
T
his reparation is all that the in-
jured party can receive, and is in general an ade-
quater
his compensation, levallieroer t I;ce
r‘svorioral
n
therefore, that wherever the wrong done is of that
description, a tender or payment of money into Court
co
renert
should be allowed. Cases, indeed, occur of wilful
and malicious injuries to property, in which the de-
fendant is not entitled to any protection; but as it

cannot be ascertained, in the commencement of a
suit, whether the wrong complained of be wilful or
tom determine,aliciou
s'a point
wdo whnicoht thinki it
s
the privilege of tender and payment of money
into Court, to limit it generally to cases where the
I theit possible,pro i ee
in o f
extend-
ing a
r conduct of the defendant is not wilful or malicifins.
Some cases, h 0.% ever, which affect the person, cha-
racter, reputation, or domestic comfort of indivi-
duals, are of such a nature that the iidurie. corn.
plained of are necessary wilful or malicious. In these
the defendant, if guilty at all, is obviously guilty of
a moral as well as a legal wrong, and insult is often
added to injury. The actual damage sustained is
not in such cases a fair measure of the compensa•
Lion to which the plaintiff is entitled; neither is it
just that the law should afford any protection to the
defendant, or allow him the privilege of estimating
that compensation himself at the risk of his adver-
sary. It is contrary to every principle of justice
that a man should beat or imprison or libel another,
or seduce his wife or daughter, and then be allowed
to offer him 1004 or any other sum, with a threat
that, if it be not accepted, he may try what a Jury
will give at the peril of costs. Not to mention that
such a privilege, if given to the wrong-doer in the
cases specified, would tend to induce the iajuied
party to take other means of satisfaction, rather
than appeal to the proper tribunal for redress of his
grievances. We do not propose, therefore, to ex-
tend the liberty of tender or payment of money into
Court to actions for assault and battery, false im-
prisonment, libel, slander, malicious arrest or pro-
secution, or for criminal conversation or seduction.
In these cases we think that the plaintiff is entitled
to a public vindication of his character, and to re-
paration for the outrage done to his person or feel-
ings or domestic comforts, to be estimated by a
Jury, at the inevitable coats of the defendant. If,
indeed, the action be of a frivolous description, us
many such actions are, the Jury will do justice be-
tween the parties by giving very small damages, and
it is very fit that, if the damages given be uotabove
a fixed sum, the plaintiff should have no costs. We
shall have occasion to consider hereafter, when we
come to the subject of costs, whether the sum of
40s , at present limited by the statute 22 and 23
Charles 11., ch. 2,in cases of trespass to land and as-
sault, be the proper sum,and whether the provisions
of that Act or any similar provisions should be ex-
tended to any other actions.
Actions of trespass to lands, and actions on the
case, are frequently brought for an act done purposely
to try some right, in which instances the pructice
of payment of money into Court is not likely to be
applied ; but we do not think it necessary to except
such cases; for, if the defendant should find that he
cannot support the right, there is no reason why lie
should not abandon it and pay damages, nominal or
real, into Court. Neither do we think it necessary
to except actions of detinue, (rover, or trespass, for
taking away goods, but rather to provide that a
tender before action brought of the goods themselves,
with a sum of money for damages, or of a turn of
money only, if the goods were no longer in the de..
fendant's power, may be pleaded in bar; and that
after action brought, the defendant tray pay money
into Court, or apply to a Judge for liberty to restore
the goods, under certain regulations, which will be
found annexed. The latter is a course of practice
already in some measure established.

In cases of injuries to the person, arising from ne-
gligence, unskilfulness, or accident, not less than
those of injuries to property, we consider the amount
of reparation to be fair matter of dispute at the peril
of costs on either side.

It appears to us that the liberty of tetidefing
money before action brought, and of paying money
into Court afterwards, should be co-extensive. If
the defendant be allowed to offer reparation in money
at any time, he certainly ought to be at liberty to do
so at the earliest period. Neither the plaintiff nor
the defendant can derive any advantage from confin-
ing the liberty to a period when an action has already,
been brought and expencee incurred. We also think
that, whenever a defendant is by statute allowed to
tender amends, he ought to be allowed, after action
brought, to pay money into Court. +e •

We beg further to assure your Majesty that we
are proceeding with all diligence in the consideration
of the other important subjects of inquiry embraced
by your Majesty's commission.
(Signed) J. B. BOSANQUET.
HENRY JOHN STEPHEN.
EDW. H. ALDERSON.
JOHN PATTESON.
Dated this 26th day of February, IBM

MEXICAN BANDITTI.

Morn the New Monthly Magazine.)

After an animated description of a furious attack
by banditti Mr. Dickson, speaking. of the loss of
Lis companion, who had been killed in the encounter,
thus proceeds :—" He was quite dead, and had
fallen a little out of his former position from the mo-
tion of the carriage. I wined away my gaze in
horror and sorrow to Juan R— ; he was breath-
ing heavily, the blood was issuing from seven or
eight places of his body, his eyes were qaite
shut. I remained gazing at him in a fixed
stare, till soon his breathing became almost im-
perceptible ; he stared once slightly, mid then
breathed no more. The bottom of the carriage was
swimming in blood, and my hands and knees were
amongst it. My wound was bleeding fast, and in
order to staunch it I pressed in part of my dress, in
doing so I made a slight movement of my person ;
in that instant the females, who appeared to be
unwounded, perceiving it, whispered me for
God's sake to keep still and motionless. I re-
mained so for a moment, listening to their ejacula-
tions of 'Ave Maria! audi nos, pecador que
soy yo,—Senora Guadalupe de nuestros pecados,'
and running over their paternosters. Then,
for the first time I thought of religion, and
I tried to pray. The words of olden times
passed from my lips hurriedly, but my heart was
not with them, even as I strove to pray. I found
myself beginning it over end over again, till I gave
it up in despair—again I resumed—l tried to repeat
the Lord's Prayer—the first few words issued from
my lips—and then a sudden motion of the carriage
sent a thrilling sensation of pain through my body.
I stopped instantly in feelings of horror and
desperation. Oh ! I cannot, will not, dare not
die,' groaned Ito myself, impossible; I cannot
die !' And then I thought of every mode of es-
cape which I could possibly have a chance of. I
thought of all the banditti scenes that I had ever
read, but none seemed like this, and I gave up my
hope of escape in despair. I even recollected that
Gil Bias had joined the banditti he met with, and
that I might do so too with thee,. " But will they
spare my life after killing so many of them ?
No! but why should they know that you
killed them ?' and, as I then thought, it
occurred to me, that if I had not the pis-
tols I had fired they could not distinguish
amongst us ; full of that idea I slowly raised my arm
and grasped the pistols which were lying on the
cushion and thrust them one by one among the dead
bodies. Again I thought of offering to enlist in their
band, but then it occurred to me that being wounded
[ could be of little service to them, and thev too
might think so and kill me—but if they did consent
to spare my life on condition of becoming a member
of their band, I could retire with them to their
haunts in the woods, and at some future time, con-
etsocatriee rferosomlutthioen""of loflbeardinrg'eatrnlyy
btiriovuegtioi t mmaykemimndy
services to enlist amongst them, when a pause in
the motion of the carriage took place, all the preced-
ing ideas passed hurriedly through my mind and
half defined. The curtains of the carriage were
drawn and a stern voice cried loudly, ' are they all
dead ?' "

We are concerned to state, that the Market
Drayton Bank suspended its Liniments ou Monday last.
We understand that the resources of the house are inure
than sufficient to mret every demand, acid that the
ereditors•will only duller by a tempt,rary delay.— Sulopiam
Journal.