« AnteriorContinua »
We proceed to suggest the alterations which we should wish to propose
in the form of these orders,—unless a computation, entirely independent of Terms, could be adopted.
As proposed to be altered. That at any time after the expiration of ten weeks, from the time when the answer of a defendant is to be deemed sufficient, if the plaintiff shall not proceed in the cause, the defendant shall be at liberty to move, upon notice, that the bill be dismissed with costs for want of prosecution; and the bill shall accordingly be so dismissed, unless the plaintiff shall appear upon such motion, and give an undertaking to file a replication within a fortnight, in default whereof the bill should stand dismissed with costs without further order ; or shall appear upon such motion, and give an undertaking to hear the cause, as against the defendant making the motion, upon bill and answer, and to set down the cause for that purpose, within such time as the court shall then, or on any subsequent special application of the plaintiff to enlarge such time, limit, in default whereof the bill shall stand dismissed with costs, without further order; or, unless it shall appear that the plaintiff is unable to proceed in the cause by reason of any
other defendant not having sufficiently answered the bill, and that due diligence has been used to obtain a sufficient answer from such defendant, or that other special circumstances have arisen to the satisfaction of the court; in which cases the court shall allow to the plaintiff such further time for proceeding in the cause as it shall deem reasonable.
As proposed to be altered. That when the plaintiff files a replication, either with or with
for the examination of witnesses—a provision being made for allowing extra time in the case of the Easter short vacation.
Any subsequent application by either party to enlarge must be made on special grounds, or by consent. The defendant, on enlarging publication, undertakes to appear gratis at the hearing ; and the production of an office copy of his order of enlargement is therefore equivalent to an affidavit of his having been served with a subpæna to hear judgment.
On the rule to pass publication being given, the cause is put into a cause list kept for the purpose, and ii subsequently passes into a second list—that of causer ripe for hearing—when publication has passed. It may be so placed for hearing by either party.
The subpæna to hear judgment is served on the rule to pass publication having been given and not enlarged by defendant. The plaintiff may, it appears, if he likes, serve his subpæda at once on giving the rule; but if he apprehends such an enlargement, he usually omits serving the subpæna; for if ne serves it, he does 80 at peril of not being allowed for it in costs, if the defendant's enlargement renden it unnecessary.
out a previous motion to dismiss the bill for want of prosecution, he shall serve the subpæna to rejoin, (e) within one month from the filing of such replication; and shall give his rule to pass publication in the term following the expiration of such one month, whether such one month shall expire in term or vacation; and shall set down his cause to be heard in the term following that in which such rule to pass publication is given, and shall duly serve a subpæna to hear judgment; and if the plaintiff shall make any default herein, (then, in cases where a motion has beon made before replication to dismiss the bill for want of prosecution, upon application by the defendant upon motion or petition without notice, the plaintiff's bill shall stand dismissed out of court with costs; (f) and, in cases where no such motion has been made, the defendant shall be at liberty to move upon notice that the bill be dismissed for want of prosecution, and the bill shall accordingly be dismissed with costs, unless the Court, upon reason for the default shown to it by affidavit, shall see sufficient cause to retain the bill upon payment of the costs of the motion (unless the Court shall otherwise order), and on such other terms as it shall see fit to impose; in default of compliance wherewith the bill shall stand dismissed with costs, without further order. (g)
As proposed to be altered That either party shall be at liberty, by motion or petition, without notice (h) to enlarge publication, the cause being nevertheless set down for hearing), until the seal next preceding the term for which the cause is so set down; except in the case of Trinity Term, as to which such publication may be enlarged to
(e) Subpænas to rejoin ought to have been made returnable immediately without order,-otherwise order 29 is, as to them, wholly useless. No provision is necessary as to the rule to produce, which the plaintiff will give according to his convenience.
(f) We had very much rather make notice necessary in every case (leaving out the words within the brackets); but at any rate it should apply to all cases where no previous default had taken place.
(8) Might not the defendant be allowed, after replication, to proceed with the cause at once if he pleased, instead of taking a dismissal ? For that purpose it would seem to be only necessary to provide that he might, after replication, (and a default of the plaintiff in serving subpæna to rejoin in the month,) be allowed for a limited time to give notice to the plaintiff's clerk in court of his rejoining gratis, and then to give the rule to produce and serve a subpæna to hear judgment, without waiting for default on the part of the plaintiff after that committed in not serving the subpæna to rejoin.
(h) It would be more simple and easy to prescribe that the rule to pass publication might (instead of expiring in eight days) extend to the first day of, or the seal before, the following term, except (as above-mentioned) before Trinitý term; the cause being set down after giving the rule; or, instead of a motion, a rule to enlarge miglit be given by either party at the Six Clerks' Office. The only objection which the Com. missioners make to an enlargement which does not interfere with t.se hearing is the expence, which is easily obviated.
the last day thereof; and that publication shall not be further enlarged, except upon special application to the Court, supported by affidavit, and at the cost of the party applying, unless by consent, or unless the Court shall otherwise order.
ORDERS 19, 20, 21, 22, & 23, Are good and wholesome alterations. But is an order nisi for dissolving an injunction necessary at all ? Would not a notice of motion do? Order 20 should have extended to subpænas to revive, at least in ordinary cases of abatement on the part of the plaintiff; and all subpoenas to rejoin should be returnable immediately, without which this order is, as to them, fruitless, for it saves nothing. Orders 21 and 23 seem to be founded on the evidence of the Under Secretary of the Rolls, whose principal's interest luckily in this case coincides with that of the public, and whose profit might have enabled him to make Order i effectual, without his being a loser on the whole account. We were a little amused at reading this gentleman's evidence (Appendix to the Report, 327). Being asked, whether he could, from his experience, suggest any alterations beneficial to the public, his answer is prompt--that it would be a great benefit to the public to have orders not only by motion but by petition, that is, from his store. Being further pushed on the plain point, whether a great deal of the motion of course” business might not be equally well done without either motion or petition, (as it obviously might), he says that this is “ a subject on which he hardly thinks himself capable of giving an opinion without further consideration."
ORDER 24 Will be in almost all cases either inoperative or a burden on the defendant; because it applies only where an order is got, and the plaintiff will therefore be obliged to compel him to get one. In the usual way costs are paid and received without order; and the rule should simply have been that the receipt of such costs should not compel plaintiff to begin de novo.
ORDER 25 Is a good one, but,
ORDER 26 Is of very doubtful policy. It is true that “the examiner is sworn to act impartially, &c. &c.;", but no person is proof against impressions received: the mischief, after all, lies in private examination.
ORDER 27 Involves a proper principle.
Orders 28, 29, Are proper and just regulations as to full costs occasioned by insufficient answers and amendments. We have before made some observations as to the propriety of either giving full costs, or increasing the stated costs of a second insufficient answer. Indeed, the
stated costs of a first insufficient answer should be much more, where the plaintiff has to go to the Master: they should be 51. at least.
ORDER 30 Is more doubtful. It goes perhaps further than was necessary, in not only refusing costs to a successful plaintiff, but giving them to the beaten defendant. We do not clearly see where and to whom the office of judging the propriety of amendments is confided by these orders. Cases will be every day occurring in which no two Masters, taken at random, would agree, even if they could be persuaded to enter as fully into all the facts and pleadings as they ought to do in order to form any opinion on the subject. Besides, it will often be very unfair to judge an amendment after the result, which may give a very different colour to the case.
ORDERS 31 and 32 Very properly make the full costs follow the event of a plea or demurrer; but why, if care is thus taken to prevent a vexatious use of the forms of the Court, should those forms still continue almost to preclude the possibility, in a country cause, of applying a demurrer at all? We cannot but express some surprise at Mr. Bell's evidence on the subject of demurrers, having practically known repeated instances of their utility. When the party who adopts this defence does so at the peril of full costs, we see no reason why the Court should not enlarge within fair limits the time for such a proceeding. The eight days after appearing are notoriously insufficient, in country causes at least.
ORDER 33 Embraces the mere tail of the original proposition of the Commissioners which was directed against hearing more than two counsel for each party. The opportunity was then taken of setting clear a point on which in fact, however, little or no practical difficulty we believe was ever found. It now, however, forms the whole of a new order. It was hardly worth so much honour.
ORDER 34 Is, we must confess, not very intelligible; we cannot learn that the eventual “obtaining of the costs of the suit” had any thing to do with the defendant's right to ask for the costs of a default by the plaintiff. It surely is not meant to be said that the Court could not, and did not, whenever asked, make the proper order at the time, giving the defendant the costs occasioned by plaintiff's defaults of this sort where it saw fit; and there is no provision here for the defendant's getting them without an order.
ORDER 35 Increases what are called “costs of the day” to 101., a sum often too much, and sometimes too little. The old absurdity still remains of the same sum being paid, whether there be only one set of defendants, or whether there be four, five, or six sets. Surely, it would have been best to have made some graduation in this respect. There is some rather curious reasoning on the subject in the Commissioners' “reasons"; they would not give each set of defendants the stated costs, because it would often be more than they have spent. Why then give it to a single set of defendants? The same objection applies. A defendant appearing separately does not spend the less because he has co-defendants. The principle of the order is, we must say, bungling and improvident.
Order 36 Is not unjust in principle; but the Court will seldom be able to insure such costs being in fact paid by the solicitor. Regulations of this sort are, we cannot but think, a little bencath the dignity of a court. We hear nothing of complaints of the Courts of King's Bench or Common Pleas against attorneys.
The judges do their duty: activity is the order of the day, and the principle is soon infused into all connected with them. If it was (as we believe) considered doubtful before, whether the Court could thus fine solicitors, we must say we cannot see how it acquires fresh authority by itself ordering that it shall have it.
ORDER 37 We were rather surprised at this single specimen of retrenchment, and cannot but think the instance ill chosen. Many practitioners think that the abolition of the sworn clerks would be injurious; and, if they are to be continued, the question ought to be fairly considered, whether they are, or are not, overpaid; or how it is best they should be remunerated ? It is strongly urged, that they exercise a great influence in keeping the practice of the Court in regularity, and that much time is occupied by them in advice, &c. on these subjects. The fees for attendances in court (with their term fees) form the remuneration. The former do not average perhaps more than one pound per cause; and might, we think, fairly have been left; at least, till the whole question could be considered.
The taxation of costs is the principal source of profit to clerks