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ORDERS 16, 17, 18. We shall follow up our observations on these orders by a speculation for their reform, which, though no doubt requiring (as all such alterations must do) much reconsideration, would, we are vain enough to think, be an improvement.
We strongly object to the uncertainty and irregularity which will arise from the regulation now proposed, of making the plaintiff's time depend on Terms, to an extent which will at one time afford much more indulgence than is wanted; at another, will render it almost impossible to act at all. We have no objection to all fair regulations for preventing the evil of vexatious delays to a defendant, but, we cannot help reflecting, that a denial of justice to the plaintiff is a more serious evil; and that no court has a right, in the hope of preventing possible abuses, to impose restrictions on a plaintiff which are not rational and consistent in themselves, and which do not leave him a fair and regular period for the prosecution of his cause. With the delays which now take place in the hearing of a cause, it seems ridiculous to grudge a plaintiff a few days for actual work, which are likely to be followed by perhaps two or three years of quiet inaction.
We will just notice, as examples, two or three of the differences which a mere casual occurrence, or the superior cunning of a party may, under these orders, make in the most important stage of the plaintiffs cause.
If the answer be sufficient on the day before Trinity Term, say the 5th June (and, if this sufficiency is by report, it may be in less than three weeks after the answer is filed), the plaintiff is liable to motion to dismiss on the seal after that term, say about 30th June. If, on the other hand, the answer be sufficient on the 6th of June (the first day of Trinity Term), he will be safe against any motion till about the 5th of December. In the one case he has not much more than a month to consider and determine on his future proceedings; in the other, he has full six months.
Again, if the answer be reported sufficient on 22d April (the day before Easter Term) the commission will be returnable on the 6th June (the first day of that term), and the plaintiff will be driven to pass publication about the 25th of June, giving him only a few days to examine his witnesses. But if it be reported sufficient the next day (23d April), or any day before Trinity. Term, publication will not pass till the 28th November ; giving the plaintiff in the one case nearly as many months to examine his witnesses in, as in the other case he had days, considering the time it takes to issue and open a commission.
Such rules, applicable to so important a proceeding, are unjust and irrational. They will fall into contempt and disuse by common consent. They relate to that part of a cause, which, above all others, requires to have time and consideration, and to be regulated by principles of no fluctuating or accidental character.
There is no necessity to provide in Order 16, further than for compelling a replication; and it would be much better, therefore, to avoid such technical terms as speeding a cause with effect.” The replication will, by Order 17, bring certain fixed and inevitable consequences, and nothing, therefore, is wanted but to compel the plaintiff to take that one step. So, in a common law cause, a sluggish plaintiff is ruled to reply; if he does not, non pros. follows: if he does, the incidents follow consequent on the cause being at issue; and, if he fails to try in due time, judgment, as in case of a nonsuit, is got by application to the Court.
Order 16 may therefore, in some respects, be simplified, though it may remain quite as efficacious. As it now stands, it would seem that in one particular, at least, the dilatory plaintiff is less confined than the industrious one ; for the undertaking to speed with effect does not, we apprehend, carry with it any such strict rule, as to the return of the commission, as is imposed by Order 17.
In Order 17 much more alteration is required to make it at all applicable to general purposes. The time limited for the subpæna to rejoin, &c., is uselessly confined. It at any rate imposes the necessity of paying the private seal tax very often, which no rule made by a Lord Chancellor ought in common honesty to do. Subpænas to rejoin are in fact wholly useless, and might also, with the rule to produce, be wholly abolished. It is certainly not necessary to make any regulation about giving the rule to produce.
From the regulation put forth as to commissions, two rather singular consequences follow :
1. In cases where the commission is required to be returnable on the first return of a term, the plaintiff, in a town cause, has more time allowed him to examine his witnesses than is given in a country cause requiring a commission; for the examination may of course go on in town, pending the rules, during the whole term ; but the commission must have ceased with the vacation preceding.
2. When the replication has been compelled, or has been given voluntarily in Easter Term, the commission to be sued out (after allowing for at least ten days necessarily consumed in striking, and fourteen days' notice of opening after it gets into the country) will generally be returnable about a week before it can be opened.
It is obvious that neither party can, in the general way, finish his examination within the limits prescribed; and a motion must, therefore, be made to enlarge publication by common consent,
which will now be on notice (c), and will therefore cost three times as much as on the old plan, to which by-the-bye the Commissioners urge no objection (if not interfering with the hearing) but the expence.
It need not be observed, that the time to which enlargement can take place may be easily regulated within fair bounds, and so as not to interfere with the hearing of the cause; and indeed it would be easy, if necessary, to make the rule to pass publication one which (instead of expiring in eight days) should expire at an average time, sufficient for the examination of country witnesses, the commission being made either returnable without delay or on the day on which publication shall expire.
There can be no earthly reason for thus fretting and harassing both the plaintiff and the defendant, when the interest of the latter, in a dilatory suit, can be abundantly protected by ensuring the setting down, or ultimate decision of the cause. The whole term during which the rules are giving can, at any rate, in all cases, be allowed for the running of the commission and the examination of witnesses; and there seems to us no reason why either party should not (when they want it) also have for the purpose all the vacation previous to the term for which the cause is set down, or at least to the seal preceding it.
Publication should therefore be enlargeable by rule or order (or perhaps the original rule itself should not expire) till the first day of the succeeding term, or the seal before it; except in Trinity Term, when, the previous vacation being a short one, the plaintiff should have at least to the end of that term. It would be very easy to provide for the possible, though not very probable, case of the Court's reaching a cause set down for Trinity Term, in that term, by directing that, on production of the order of enlargement to the register, he should as of course mark the cause adjourned till after term.
The conclusion of Order 17 is very doubtful in justice and policy, we think. We would at least let a plaintiff, who has shown his bona fides by going on without compulsion, have the benefit of a notice; and not place him in as bad a situation (for a slip which his previous conduct evidences to be most probably accidental,) as a dilatory plaintiff used to be in after an undertaking to speed, twice given and twice broken. It would be much better in this case, if not in all cases, to let the defendant move on notice; the Court making the order, unless satisfactory cause be shown, and taking the opportunity to fix peremptory terms,
(c) We believe that, to remedy this evil to a certain extent, the court has lately held that parties mutually consenting may enlarge at the Six Clerk's Office, and without order.
according to the justice of the case. It can hardly be wished to proceed much more harshly than in courts of law; and even there a defendant moves always twice, and often thrice on notice (or, which is more expensive, by rule nisi) before he gets judgment, as in case of a nonsuit, for not proceeding to trial. It should be considered also that the defendant may, if he pleases, after subpona to rejoin set down the cause himself.
A plaintiff will rarely, under the new orders, go beyond the motion to compel replication, if he does not intend to hear the cause, for the time he would get would be little, and would cost a good deal ; and, if he is really proceeding, the necessity of taking several steps in but little time will, from many trivial causes of accident and delay, often expose him to the operation of a harsh proceeding, which is, moreover, very objectionable, because experience has shown it to be one which respectable practitioners will not avail themselves of, though they would take care to follow up a fair and open path of proceeding.
The acts of default to be committed under Order 17, after subpæna to rejoin, appear to be: 1st, in not getting an order for or issuing a commission, which is rather a strange thing to impose on a plaintiff, whether he wants it or not; and by not taking which, if he wants it, he alone suffers. 2d, in not giving the rules.
3d, in not setting down the cause. Both these latter steps are taken through the clerk in Court, and may be casually neglected ; and a default in either case is easily remedied by the terms which the Court would impose on a plaintiff, at his own cost, on a motion against him for default, where he will not ask indulgence if he really does not mean to avail himself of it, because it will cost him much and do him no good, but where he ought to have indulgence if he bona fide desires it. If the object of reasonably protecting the defendant be answered, the Court has no right to take steps which wantonly annoy a willing plaintiff. By the order, as we have altered it below, we repeat that the only justification for pressing a plaintiff (that of protecting a defendant from vexatious delay) will be abundantly answered ; and yet the plaintiff will have a much longer period for preparing his evidence and examining his witnesses. The old rules of the Court will settle, as between plaintiff and defendant, the rights to the carriage, costs, &c. of the commission. There is no necessity for further regulations on that head.
Several questions may be raised on Order 17 as it stands. What is to be done where plaintiff does not want a commission ? Is he to stand dismissed for default in issuing one, whether it is necessary .or not? and is not the chain of consequences, &c. broken in cases where none is issued ? How is defendant's commission, if he wants one, and his time for using it, to be regulated, -say in Easter vacation ? What is to be the course as to commissions abroad? Is an order for a commission to be always necessary ? What is to be the consequence of plaintiff's not serying a subpoena to hear judgment, though he may set down his cause? On what is the motion to dismiss to be founded ? and, if on a certificate, will an intervening step towards conformity save the default'; or is it irremediable? If it be, the necessity is stronger for making the motion on notice, for the sake of both parties; that, in case of accident, it may be set right as soon and as cheap as possible. Under the old practice, a replication filed at any time before motion saved dismissal; and, if every locus pænitentiæ is now to be removed (and that, too, in the case of a party who has hitherto regularly gone on towards hearing, and has placed the cause at issue, so that defendant can, at the worst, get rid of the suit by setting it down himself), the harshness of a motion without any notice becomes still more apparent.
In truth, the sort of jumble which it appears to us is created by these three orders, as they now stand, will infallibly produce a conventional practice which will shortly defeat them ; while a more moderate reform would have had a constant and healthful operation.(d)
(d) It may not be uninteresting to subjoin a short statement of the practice of the Court of Exchequer in these stages of a cause. It is simple, and perhaps not unworthy of imitation with some modifications; to obviate the irregularitics arising by measuring time by terms. When a clear term has elapsed after the defendant's answer, the defendant may
in the following term move as of course without notice for an order to dismiss the plaintiff's bill ; and thereupon an order nisi is made and served, by which the bill stands dis. missed without further order, unless cause be shown to the contrary in a week. The common cause for the defendant to show against this order nisi is the filing of a replication, which discharges the order to dismiss. But the plaintiff may give notice of showing, as cause, special circumstances; such as that he has not been able to get in other answers, or that he wants to amend, that he has used due diligence, and that he does not aniend for delay; and the Court exercises its discretion on these circumstances, requiring an affidavit to be filed in support of the special cause shown.
Supposing replication once filed, no amendment can be made, except on special motion ; and either party may (in the subsequent term after that in which replication is filed) give the rule to pass publication ; or, if the defendant prefers, he may (after letting that term go by) in the subsequent term (i. e. after one clear term has elapsed since the former order to dismiss, and no proceeding has been taken) move again to dismiss; and on this another order nisi will be made, dismissing the bill, unless plaintiff places himself under the terms of what is called the peremptory order, which effec. tually prevent any further delay, as the plaintiff thereby undertakes to examine his witnesses in the following vacation, and to bring his cause to a hearing in the following term, not being hindered by the defendant. Publication under this order passes on the first day of the term, and in default of the plaintiff's setting down his cause for hearing, and serving a subpæna to hear judgment agreeably to the undertaking, the bill stands absolutely dismissed without further notice.
There is in this Court no rule to produce witnesses. The rule to pass publication is in fact a rule or order nisi, expiring a week after service, unless cause be shown by enlargement ; and each party may enlarge as of course once, each enlargement being from one term to the first day of the following term; thereby always giving a vacation VOL. 11. -JU.