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copies must otherwise be served in addition to the label, in order to give the necessary information to the defendants), should be costs in the cause."
Thus, in order to save the possible casual expence of two or three writs, there shall be always, and in all cases, THREE!
The whole statement is most singular. As to the present supposed inconvenience (of which, by-the-bye, we cannot find that the Commissioners had an iota of evidence, even from the Subpænaoffice), it would seem that, in the first place, the statement is calculated to mislead. The plaintiff is not obliged to take the defendants in the order in which they are named, as would seem to be implied, so as to make the writ useless if he does not find the first named defendant: he serves any one or two whom he first sees, and the worst that can happen is, that he may have at last to get a second, and in extreme cases a third, writ. But it cannot be pretended that this often happens; and, if it did, it would be quite sufficient to meet that evil by allowing the plaintiff to have separate writs, when he anticipated or found cause for it. There is no reason for compelling him, in all cases, to pay for three times the number he wants. The mere postage, in country causes, is no trifle in such proceedings.
In the second place, it is a very bungling device, to guard against what is only put as “a casualty,” by a permanent tax on all causes : for, in the third place, a rational and simple remedy might easily be found in following the example of the Exchequer, and of the common law courts, by making the writ an open one, and serving a copy, which at once puts an end to the casualty, and diminishes instead of increases expence:
or it might have been provided that the service of the labels (making them a little more explanatory) at the dwelling-house should be good service.
But it was broadly asserted that this proceeding would little increase expence. This is obviously incorrect if contrasted with the plan of putting more of the defendants, if not all of them, into one writ. But it is also untrue, even as matters stand by the old practice; and of this the Commissioners publish abundant cvidence in the Appendixes to their Report.
Ata public seal, a subpoena against three defendants, used, we believe, to cost, or ought to have cost, 3s. 6d.; namely, 2s. 6d. for one defendant, and 6d. for each succeeding defendant. The cost of issuing three subpænas, by the new order, will be 7s. 6d. If the writ had been an open one, and consequently without labels, the cost, in all cases, whether the defendants were one or three, would have been only 2s. 6d. We have therefore 5s. difference, to provide for the extra expence of copies for service, for which copies 1s. a-piece is an ample allowance, -leaving 25. saving, even on that plan. But it is not true that service by copies need be
any additional expence. The fee for service by label is the same as the fee for service by copy (including that copy) in the Exchequer and common law courts, and is considered, we believe, amply sufficient. The observation that «
copies must otherwise be served in addition to the label” is a curious one, not only because it would be perfectly easy to make the label as expressive as the writ, but because a writ served by label is a close writ; which no one can effectually serve if it is once copied; for he cannot swear to its being under seal if he removes that seal in order to copy it. Take away the necessity for the magical wax which encircles it, and the writ might, indeed, be served by copy; but away would also go
casualty” which is the excuse for imposing three writs. Great practical inconvenience arises from the seal“ encircling, instead of being an appendage to, or imprint upon, the writ. From there being an official stamp upon the subpoena in addition to the seal, the former is frequently mistaken for the latter, and much confusion and irregularity constantly arise as the necessary results.
But even this is not all. The great evil which the multiplication of subpoenas brings upon the suitors is studiously kept out of sight, though the Commissioners received and have published sufficient evidence of it. Subpænas are only to be had at the above prices on what are called public seals, i.e. about forty days in the year, as we compute them. On all other days in the year a fee of 3s. 6d. nominally, but really (by extortion) of 5s., is to be paid extra for each subpæna for a private seal; or if there be no private seal, then a further douceur of 21. 10s. 6d. is paid for opening the seal, besides a payment for a journey, if the Chancellor is in the country. When Lord Eldon was at Encombe, 261. 5s. was charged for this journey.
The necessity for having writs on an emergency, without waiting for public seals, is of very frequent recurrence. The prompt issuing and service of a subpoena very often prevents much ulterior mischief. Besides, if Order 17 is to remain as it now stands, the suitor will continually be obliged either to pay for a private seal, or to lose his bill, an effect which no order of the Court ought to produce in favour of its officers; though, in that particular instance, the subpoena will continue to contain, as before, three defendants, in defiance of the obvious justice of allowing it to include all the defendants, as some sort of counterbalance for the advantage given, in other cases, to the Subpoena-office by the present order. Reform, to return to the subject, will thus add 7s. 6d. or 10s. extra profit on every three defendants to the Lord Chancellor and those of his officers who are connected with private seals. It is useless to urge that all plaintiffs should wait for public scals. Many, often, cannot do so; and, in the long vacation, for instance, justice must altogether sleep, or be awakened by those gentle stimuli which bring agreeable consequences to those only who profit by them.
The great desideratum is to have a seal or stamp permanently stationed at a public office for issuing all these common writs on application, at the usual fee for the seal, as in all other courts; and then it would not much signify whether the suitor was compelled to group or to separate his defendants. But, practically speaking, it would often be very useful that all the defendants' names should be put together; for it does now often happen (and will more often happen when they are all distinct), that defendants are put to the expence of separate appearances before they can find out what is the subject of the suit, and can see the means of agreeing on what they would have arranged at once if they had earlier known their situation-a common defence.
To sum up the reform which is wanted in this department, we should say that it is necessary
1. To make the writ an intelligible and an open one.
2. To let the plaintiff, according to his convenience, place the defendants either separately or jointly ;-unless it be thought best at once to make it imperative on him to put all into one writ.
3. To have a seal or stamp permanently and constantly in action, imprinted upon the writ, without the farce and defilement of waxy substances.
4. To let the solicitor fill up his writ himself, and bring it to be sealed, on payment of the same fee as he now pays for having it made out for him. (6)
At any rate, the profits of the present reform should form a sinking fund, for the compensations to be given to those who will lose by other reforms.
(6) As it is proper that it should be the duty of some officer to see to the regularity of writs, we see no objection to pay the patentee liis present 2s. and the fee of 6d. for sealing, even though the solicitor should fill up the writ himself, which he would gladly do to save two journies to the office. In the courts of law this is the plan, though the officers who pass the writs (and who formerly, no doubt, prepared them) have fees quite as high for so doing as the charge made at the Subpæna-office, and rather higher. Since the above observations were written, we learn that the patentee of the Subpænaoffice has been directed to make out the three writs at the old charge for one ; but we understand that one shilling for each writ beyond the first has already been de. manded. We should be inclined to doubt the Chancellor's authority to order the patentee not to charge his ancient and legal fee for every writ he issues ; but, even if ihis corrective is properly administered, surely it is a bungling mode of meeting the evil, and one of which the patentee may justly complain. Morcover, we have not heard that the privale scal fees on the supernumerary writs are to be thus waived.
ORDER 3. This order, which requires a defendant to commence taking his orders for time at the end of eight days is a very proper rule ; but fastidious critics may suggest that perhaps it would have been better to have expressed in simple terms what the defendant's course was in future to be, without reference to technical terms, which the new orders will soon render obsolete, and even unintelligible; and in injunction causes, where the practice was to take the injunction on craving a dedimus, (as a saving of expence and trouble to both parties, instead of the form and cost of issuing an attachment,) it would have perhaps been as well (now that this craving is taken away) to provide that the injunction might issue on the allegation of the eight days after appearance having expired.
ORDERS 4, 5, 6, 7, 8, 9, 10, 11, 12, Seem on the whole judicious; but it deserves much consideration, whether a cunning defendant, who takes care to make his third answer sufficient, after wilfully evading the two first, should not be liable to be at once visited with costs. The stated costs on the second insufficient answer should, at any rate, we think, be increased. Order 6 is, we think, too peremptory ; particularly as under the circumstances implied in it the defendant is clearly the dilatory party, and the plaintiff the active one. A month would be a more suitable time. Order 11 should go on to state that the exceptions for scandal or impertinence should be delivered in the same way as exceptions for insufficiency.
Either here, or under Order 16, it would certainly be proper to provide more time for the plaintiff to reply in cases of answers reported sufficient, unless much more time is to be allowed in all cases after answer. At present, a plaintiff will have a conflict between his interest in going on, and the conviction that, if he excepts at once, and should by any means fail in supporting his exceptions (say the day before a short term), the defendant will be able at the seal after that term to move to dismiss his bill. He will in such cases, probably, be obliged to delay his exceptions, from the peril of consequences, till he can secure the report so falling as that the motion will be deferred. After exceptions to an answer have been disallowed, the time for moving to have the bill dismissed should be reckoned from the time when, if no exceptions had been taken, the answer would have been deemed sufficient, unless more time is allowed in all cases.
An answer may come in about three weeks before a short term. The plaintiff may be advised (indeed, some causes require it) at once to except; and if the report of sufficiency (in the event of the Master differing from the plaintiff's counsel) shall be dated one day before the term (say Trinity Term), he will in this case, in point of fact, have only about six weeks from the time when the answer was put in to consider of his future proceedings before a motion will come to dismiss his bill; whilst if the answer had been clearly sufficient (in which case his course would have been much plainer) he would have had a great deal longer,-in fact, in the case supposed, till the next December.
Order 12 legislates on a matter not requiring it. It is always competent for a defendant to prosecute such an order as well as the plaintiff .
ORDERS 13, 14, 15, Are quite strict enough, perhaps rather too much so. Here too (unless more time is given for amendments generally) a difference ought to be made in the case of an answer reported sufficient. It is
very difficult to lay down any rule as to amendments which may not work injustice. Ít continually occurs that amendments become necessary from mere mistakes in parties' names, which may not be discovered until the plaintiff has been placed, as against other defendants, in a situation of great embarrassment. It surely is very hard that a plaintiff should be put to a special motion, and an affidavit of the facts, in order to rectify a slight error of this sort. Again, it seems very hard to deprive a plaintiff, at any time, of the benefit of stating an important fact which has come to his knowledge after six weeks from the defendant's answer, while the defendant probably knew it all the time, and purposely concealed it. Order 13 is not very explicit, but it is presumed that the second order to amend is to be still a motion not requiring notice, though an affidavit be necessary to found it upon. With all submission, instead of the vexatious troublesome process of making the party himself, as well as his solicitor, swear to matters, it would, perhaps, have been better (if the solicitor's affidavit and counsel's statement were not held sufficient, as they certainly ought to be, for the client will, of course, follow their advice) to have given the defendant opportunity to appear, and to make out any proper case for opposition, by requiring a notice of motion to be given. It is hardly possible that a case can occur under Order 15, as plaintiff must serve a subpæna to rejoin immediately after replication, and proceed with effect
. This last order, too, does not specify who is to make the affidavit, which it requires. Probably it was meant that the solicitor and client should both join here also; for it would seem singular to be less strict after replica tion than before. It does not distinctly, appear whether an order for amendment before answer or after an insufficient answer on exceptions is to be considered the first order obtained by a plaintiff before replication.