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

COMMON LAW COURTS.

[The following are extracts from the Second Re-
port made to his Majesty by the Commissioners ap-
pointed to inquire into the Practice and Proceedings
of the Superior Courts of Common Law :]--
In that part of our first Report which relates to
the commencement of actions, we did not include
the consideration of actions real, ejectment, or reple-
vin, not having then formed a decided opinion as to
the propriety of abolishing real actions, nor fully con-
sidered what alterations we should propose with re-
spect to ejectment, nor having ascertained the prac-
ticability of applying the new form of process to re-
plevin. To these subjects, therefore, we shall first
advert. We shall then suggest the abolition of
some forms of personal actions, and the improvement
of others.

We shall next recommend a form of action unen-
cumbered by the fictions of ejectment, but in other
respects framed on the same model, for the trial of
title to all corporeal hereditaments and impropriate
tithes.

We shall then submit the expediency of investing
Courts of Common Law with several new powers
of a summary or equitable character, calculated to
economise both time and expence, and prevent un-
necessary resort to the aid of Courts of Equity.
These powers relate to the verification of written
documents before trial—the examination of parties
upon interrogatories by way of discovery—the
examination of witnesses upon interrogAtories—ie-
terpleader—and, lastly, reference to arbitration, by
direction of the Court, in matters of mutual account.
In pursuance of the intimations contained in the
early part of our first Report, we shall endeavour to
show the expediency of allowing pleadings to pro-
ceed, and final judgment to be signed, in vacation
or in Term, without distinction.
We shall next suggest some regulations by which
the forms and language of pleading may be abridged
and simplified.
We shall also propose a method by which we
think that the use of several counts and pleas,
founded on the same cause of action or defence, may
be prevented, while provision is made on the other
hand against the danger of variance.
We shall recommend that the use of the general
issue in certain actions be discontinued, and its place
supplied by special pleas ; and shall explain the prin-
ciples upon which we think this important change
essential to the satisfactory administration of justice.
And we shall conclude this Report with recom-
mending an extension of the right of tendering
money before action brought, and also that of paying
money into Court, to cases in which they are not at
present allowed ; and a method which we have de-
vised for saving, upon the trial of the issue, the ex-
pence of proving the amount of die damages.
Upon mature reflection, we are fully satisfied that
all real actions, with the exception of quare impedd
dower, may be discontinued without prejudice to
any description of suitors; and that great advantage
will accrue from thus abrogating a technical and
complex system, which, in consequence of the general
disuse of real actions, is now very imperfectly known.
Experience has shown that the proceeding by
ejectment, though possession only is thereby reco-
vered, and no right conclusively established, is
nevertheless considered a more eligible course for:re-
covering corporeal hereditaments and impropriate
tithes than any of the forms of real action ; for
these actions are never adopted so long as the right
to maintain an ejectment remains open, &c.
" An ejectment," says Lord Mansfield, " is an
ingenious fiction for the trial of titles to the posses-
sion of land. In form, it is a trick between two to
dispossess a third by a sham suit and judgment.
The artifice would be ethnical unless the Court
converted it into a fair trial with the proper party."
We propose to recommend a form of action for the
recovery of all corporeal hereditaments and impro-
priate tithes, more convenient and less artificial than
the present action of ejectment ; the nature of
which new form of action we shall presently explain.

•••• - • - •
It appears to us, however, to be very desirable
that both the action of detinue and that of trover
should be rendered more effective in compelling
specific restitution where the property remains in
the defendant's power; the value of particular chat-
tels, estimated in money, being in many cases very