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So far as the terms of court indicate any thing else than the times at which the judges sit for the transaction of business, it is hard to see any reason for their existence; so far as they interfere with proceedings at any other time in the year, in which the presence of a judge is not required, they are only a technical barrier to the conduct of business. In some cases the harm done is recognized, and statutes are from time to time passed to provide that certain acts may be done in vacation as well as in termtime. Blackstone tells us that terms had a religious origin, and in early times throughout Christendom the whole year was one continual term for hearing and deciding causes, till at length the Church interposed, and exempted certain holy seasons from being profaned by litigations. These prohibited seasons were the origin of vacations. In the English courts, however, while the sittings in banc are generally in term-time, the trials at nisi prius, as well as proceedings which do not require the presence of a judge, take place in vacation.2 Terms with us, on the contrary, are the times of year fixed for trials and all other proceedings at common law. It is a great scandal that there should be a court (as there is with us) in which a party desiring to commence an action in September cannot have the opposite party summoned to appear until the following April, and that he cannot, even under the most favorable circumstances, set the action down for trial till the following September. That this is an unnecessary consequence of terms, is proved by the practice in equity, in which process may be returned every month. There might also be a provision that in actions at common law process should be returned as often, or oftener, and in term-time or vacation. A still better enactment, however, would be the abolition of terms, except so far as relates to the times when the courts shall sit for hearing causes.
The delays which take place after the parties are actually in court are still more serious. If the defendant is “properly defended,” there are no means of obtaining judgment, even if the demand is for a debt, and there is no defence, until the case is reached and called for trial before a jury; this, as we have said, is often not till six or nine months, or more, after his appearance. It happens in this manner : the statutes require the defendant to file an answer, and set forth in clear and precise terms every sub3 Bla. Com. 275.
2 3 Steph. Com. 592
stantive fact intended to be relied on. He, therefore, files an answer, which may contain a statement of any facts which would amount to a defence ; it usually consists of a traverse, or denial, of the facts stated in the plaintiff's declaration. The plaintiff has then nothing to do but to await a trial of this issue. The attorney for the defendant, however, if he does not wish to trouble the attorney for the plaintiff unnecessarily, sometimes tells him that there is no defence, and that he shall not appear at the trial; but until that time arrives no further proceedings can be taken. This kind of delay is not only not discountenanced, but has come to be considered tacitly as a sort of “natural and inalienable right” of the defendant. Frequently he obtains still further delay, by going through the form of a trial, and taking exception to some part of the evidence or rulings.
These dilatory proceedings on the part of the defendant, it must be confessed, are a great evil and obstruction to justice; but, whatever attempt is made to remedy the evil, care must be taken not to do the equal injustice of depriving the defendant of any defence which he may have. Yet some remedy may be found for the great majority of cases. The largest amount of litigation, where there is no defence to the plaintiff's demand, consists of actions brought for the collection of debts, in which there is no question of law or fact to be determined, but the only object is to obtain the process of the law for compelling payment. It is ne- : cessary for this purpose to go through certain legal forms, and in doing so the defendant has, among others, the opportunities for delaying the proceedings, which we have mentioned. Several suggestions might be made as to the means of stopping this. One is offered by the Schedule to the Judicature Act,1 by which, as will be remembered, it is provided that when the action is brought for a debt or a liquidated demand, the plaintiff may, on affidavit, call on the defendant to show cause why judgment should not be given for the plaintiff; and unless the defendant satisfies the court that such facts exist as are sufficient to entitle him to defend, judgment is to be given for the plaintiff. However harsh this may sound to those long accustomed to the dilatory process of enforcing legal rights, a very little consideration will show that it would not be so in practice. Although the defendant is entitled to avail himself of any defence, yet, if he has
1 Schedule, rule 7.
no defence, there is no reason why he should be allowed to delay the plaintiff by pretending that he has one. If he cannot, on oath, state any facts which can, by any reasonable possibility, amount to a defence, he ought not to be allowed, by means of formal proceedings, to put on the record statements without the slightest foundation in fact, merely for the purpose of delay. In all cases where the defendant could state in his affidavit facts, upon which there might be a doubt, the court would allow him to defend the action. But this rule is aimed at the great number of cases in which he does not pretend, out of court, that he has any defence whatever, and in which he often admits that his only object is to gain time. As in some other matters we have had occasion to refer to the existing practice as containing the principle of the remedies suggested, so we may do so in this instance. Our courts exercise large discretionary powers to prevent injustice from being done by mistakes and accidents in formal proceedings; they often exercise this power when a defendant, by neglect to appear, or otherwise, has been defaulted, by striking out the default and allowing him to defend. In the Superior Court of Massachusetts there is a rule, however, which regulates the exercise of this power, by providing that, when a default is entered, it shall not be stricken off, except upon notice and an affidavit stating the nature of the defence, “and proof, to the satisfaction of the court, that a defence is in good faith intended.” This rule contains a recognition of the principle that, unless there is a reasonable ground of defence, the plaintiff ought not to be delayed in obtaining his remedy. But it is just as applicable before the defendant has made. default as afterwards. The affidavit required should state specific facts which the defendant either knows or believes, and not a mere general belief that he has some defence, which, in the minds of many, simply means that they believe that something advantageous may turn up in the course of the proceedings. If the specific facts should be found to be false within his knowledge or belief, the defendant would incur the risk of a prosecution for perjury, a risk which few would be willing to run, even if they cared nothing for committing the offence. If the belief stated, or the grounds of it, were too vague or general, the court could require further proof before allowing him to defend. These powers the court now has in
I Rule 28.
cases of default, under the rule referred to, and is bound to exercise. The rule in the Schedule to the Judicature Act is only an extension of that rule to an earlier stage of proceedings.
It must be admitted that, even after all possible rules have been made to prevent delays in the administration of justice, still there will always remain a great number of cases which cannot be disposed of in a summary way, and must therefore await a trial and determination, according to a method comparatively slow. There will remain issues of fact, which must be tried in the ordinary way, although there may be but little doubt what the result will be, and questions of law, which must be argued and determined. A remedy which has been sometimes proposed for this evil, so far as it affects the highest courts, is the limitation of the right of appeal to cases in which the amount involved is of a certain magnitude, and also the limitation or denial of appeals in certain parts of the proceedings. This latter limitation has been tried in Massachusetts, in respect of matters in abatement, and motions to dismiss, or set aside, the proceedings; and in respect of demurrers, an appeal is allowed only at certain stages. There is great objection, however, to the denial of an appeal, except in matters addressed to the discretion of the court or judge, because it introduces another uncertain element into the law, and prevents the question from being determined by the court of appeal, whose determination would bind all other courts within its jurisdiction. It substitutes, for its determination, the opinions of different judges at different times, none of which bind the others. Still greater evil would result from denying an appeal when less than a certain fixed amount is involved. The objection made in the former cases, that the law would be left uncertain and confused by conflicting decisions, applies, but with still greater force, because the matters, in respect of which it would be left uncertain, would often be matters of considerable importance. Many important questions arise only in cases where the amount involved is small, yet they are of so frequent occurrence, or affect so many persons, that it is desirable that they should be determined by the highest court. Injustice ought not to be done in a small case any more than in a large one; neither should a party to an action involving a large amount be allowed to postpone its determination by numerous appeals, while the parties to a small case, involving important questions, are obliged to put up with the decision of an inferior tribunal. These circumstances furnish grounds for thinking it best that the general right of appeal should be limited only in the case of actions where the amount is so small that the expense caused by the appeal would be much more injurious to the parties than an incorrect determination. This, however, is not the object proposed by those who favor a more general restriction of appeals; their object is to relieve the courts of some of the business with which they are overwhelmed. To this there is the objection already mentioned, as well as the objection that it does not accomplish its purpose. As a general rule, each party should be allowed to decide for himself whether his case is of sufficient importance to justify an appeal..
Still care should be taken not to encourage appeals merely for the purpose of postponing a final judgment. Whoever adopts such a course, should do it with the full knowledge that it may prove in the end a costly one, least of all should it be made profitable for him. One reason why our courts are so crowded with business, is because litigation is so cheap for those who wrongfully cause it. It is generally acknowledged that justice ought to be cheaply and speedily administered to all, and that there should be no burdensome costs to be paid by those who seek it. In carrying out this doctrine, the costs of court have been made almost nominal; the fees payable to officers of the court are too small to be worth mentioning; and the other taxable costs consist of the actual expense incurred for evidence, and some small fees, which are supposed to be compensation to the attorney who conducts the cause. Although the costs of court include the fees paid to a referee, or auditor, to whom the case may be sent, yet it does not include the expense of any of the regular machinery of the court, not even the fees of jurors. It is not very satisfactory to consider that the cost of the jury, paid by the State, often exceeds the amount involved in the case which it is trying. If this expense were to be costs in the cause, the parties would be likely to form a more correct opinion as to whether it warranted that mode of trial. But the present system only carries to its full extent the principle that the administration of justice should be rendered cheap. The same argument, however, cannot be applied to the costs which are allowed the prevailing party as part of the expense which he has incurred. The course adopted in this respect has had the effect of making the administration of