7175 CONTENTS. ART. I-PRINCIPLES AND PRACTICE OF PLEADING. 2. A Letter to the Right Hon. Robert Peel, on some of the 3. Suggestions on Practice, Pleading, and Evidence. By 4. The Supplement to the Encyclopædia Britannica; Ar- Page 5. Westminster Review, No. VII. Art. 5. Law Abuses and Pleading; No. XI. Art. 3. On Practice and Pleading. 1 ART. II.-REFORMS IN CHANCERY. 1. A History of the Court of Chancery, with Practical 2. An Inquiry into the Present State of the Civil Law of 3. Copy of the Report made to His Majesty by the Com- ART. III.-MERCANTILE LAW.-No. I. ART. IV.-ON CONVEYANCING.-No. I. Critical Remarks on some Popular Writers.. 32 32 195 45 54 ART. V.—AN INQUIRY INTO THE OPERATION OF THE LATE 64 ART VI.-ON THE DOCTRINE OF ESTOPPEL WITH REFER- 76 ART. VII. — ON THE MODES OF PROCEEDING AGAINST 28 ART. VIII.-ON THE CUSTOM OF MAKING ALLOWANCES OUT OF THE POOR RATE TO ABLE-BODIED LABOUR- ERS IN INCREASE OF THEIR WAGES ART. IX.--ON THE EFFECT OF AN ASSIGNMENT BY THE WHETHER PAYMENT OF PURCHASE MONEY WILL TAKE A PAROL AGREEMENT FOR THE SALE OF LANDS OUT OF THE STATUTE OF FRAUDS... ART. XI.-A BIOGRAPHICAL SKETCH OF MR. FEARNE, ART. XIII.-LORD LANSDOWNE'S ACT: Substance of "An Act for consolidating and amending 58 65 155 .... 157.... a treatise." 2 from the bottom, for "his" read "their." 9 from the bottom, for "freehold” read "freeholds." THE LAW MAGAZINE, PRINCIPLES AND PRACTICE OF PLEADING. Speech of H. Brougham, Esq. M. P., on the Present State of the Law. COLBURN. 1828. A Letter to the Right Hon. Robert Peel, on some of the Legal Reforms proposed by Mr. Brougham. By C. E. DODD, Esq., Barrister at Law. Murray. 1828. Suggestions on Practice, Pleading, and Evidence. By EDWARD LAWES, Serjeant at Law. 1827. The Supplement to the Encyclopedia Britannica; Article “ Jurisprudence." By JAMES MILL, Esq. Author of the History of British India. Westminster Review, No. VII. Art. 5. Law Abuses and Pleading ; No. XI. Art. 3. On Practice and Pleading. It is our intention to comment, hereafter, on all the topics introduced by Mr. Brougham, but the following remarks will be confined to the merits and demerits of pleading; and we regret to say, that, in executing our task, we must place ourselves in opposition to a prejudice now most extensively prevailing. Beyond the pale of the profession, the present law of actions is universally condemned. The mode of calling the defendant into court, the forms of statement to which parties are restricted, the rules of evidence, and the method of enforcing the decree, are all subjected to reproach; but none, B perhaps, to such unmitigated contempt, as the principles and practice of pleading. "This mischievous mess," says Mr. Mill, “which exists in defiance and mockery of reason, English lawyers inform us, is a strict, and pure, and beautiful exemplification of the rules of logic. This is a common language of theirs. It is a language which clearly demonstrates the state of their minds. All that they see in the system of pleading is the mode of performing it. What they know of logic is little more than the name.”1 To such ribaldry as this, there is no manner of reply which well-bred persons can employ; but we will endeavour to wipe away some part of the reproach, by departing widely from that method of defence which is commonly adopted by the profession. We shall not seek to intrench ourselves in technicality; we shall not assume the necessity of any particular forms; but descend at once from the vantage ground of precedent and authority, and meet our adversaries on principles of abstract jurisprudence; and we undertake to shew, with as much brevity as possible, that, though overloaded by perverted ingenuity with much that taste and reason would reject, English pleading is founded upon principles as sound as any that reformers can contrive. We shall expose its faults as freely as we shall claim credit for its advantages. Yet we are convinced that the expence, delay, and uncertainty complained of, are attributable to the relaxation, and not to the strictness, of our rules; and that our best exertions should be directed to restore, instead of superseding or extending them. This, indeed, is Mr. Brougham's opinion, and the following observations will afford an illustration of his views. He, however, commenced at a point, to which we should not feel ourselves quite justified in proceeding. He gave our ancestors credit for sense, a commodity most commonly denied them; and took for granted the soundness of the foundations of the system, whilst numerous innovators are for demolishing the whole. We therefore shall begin the investigation at a somewhat earlier stage; for we have seen, as yet, no commentary on the writer from whom we just now quoted, nor on 1 Supplement to the Encycl. Brit. Art. Jurisprudence. those who have followed in his train. All that we can venture to assume is the expediency of ascertaining beforehand the nature of the matter in dispute; and it is surely too obvious for denial, that, if parties were to proceed to trial without any warning but a summons to the court, without any species of preliminary arrangement, delay, uncertainty, and confusion would result. In such a case the plaintiff's range of proof would be unlimited; the defendant might be equally diffuse; unacquainted with the precise subject of contention, the judge could form no check upon their wanderings; and neither party could be prepared for explanation or reply. We are agreed then as to the necessity of some sort of pleading, and shall hardly differ as to what are its proper objects; for that system is undeniably the best, which brings the parties most speedily to issue on a point material to their difference, which allows no statements but such as are absolutely necessary to the developement of the question, which conveys the fullest information with regard to the proofs required, and provides that these shall be as few as possible; and, above all, which accurately distinguishes the nature of the points in difference, and refers each to its peculiar jurisdiction; without which, the benefits of a decision must terminate with the suitor who procured it, as no precedent could be relied on as a guide, if fact and law were confounded in the judgment. By what means these objects are attainable, and what progress towards them our practitioners have made, are the subjects for discussion here, and will perhaps be most easily explained by contrasting the present system with those already tried and those suggested for adoption; and, in the first place, we shall notice a peculiarity which distinguishes our course of proceeding from that of every other judicature. With us, the allegations of parties are so restrained as to lead spontaneously, as it were, and without the interference of the court, to the production of an issue; whilst, in every other system, a comparative laxity of assertion is permitted, each party states his case at large, and, when all the circumstances of the dispute are fully developed, the pleadings are reviewed by the judge, who selects the material points and frames the the necessary issues. The rule chiefly instrumental in pro |