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justice cheap for those who wrongfully obstruct it, and expensive for those who seek it. There is consequently no check upon a party who takes any step which may prove troublesome to the other; if it fails, it costs him nothing, except what he has to pay his own counsel, and the other party has to submit to the same expense. It has never been attempted in any system, so far as we know, to allow as costs all the expenses which a party thus incurs. Still, if a fixed sum were allowed to be taxed for every proceeding taken in a cause where counsel is employed or expense incurred, a party would be more likely to consider beforehand the propriety of taking that proceeding. Human nature is such that it is very much governed in its actions by their probable cost, and persons are apt to decide more correctly as to what it is right and just that they should do, when they know that they will have to pay for it if their decision is wrong. Those who are willing to withhold from others their rights, and put them to the trouble of litigation to obtain them, ought to bear the chief part of the expense. At present, however, the expenses are pretty evenly divided ; a small part of the expense of trying issues of fact are taxed as costs, and, in appeals and other questions of law, each party bears his own expenses. This does considerable injustice, and if it does not encourage litigation, it certainly has no tendency to check it.
Another matter may be mentioned in connection with the subject of costs, which makes litigation cheap for debtors unwilling to pay their debts, and that is, the interest which is allowed on debts and on verdicts. The interest allowed is estimated at the rate of six per cent. yearly, which is always less than a person with good credit would have to pay if he wished to borrow. As long as this remains so, there will be a direct pecuniary inducement for the debtor to prolong the suit as much as possible. If it is inconvenient for him to pay, he may safely calculate on an immunity, lasting from one to two years; the costs of court are so small that he can readily afford to pay them as a consideration for the protection against his creditor which the law affords him, and the interest is less than he would have to pay in the market. It is probable that a different effect would be produced if, instead of this, the rule were established that the interest, after the commencement of an action, should be estimated at the rate of ten per cent. or some higher rate, until payment, and that the inducement to dilatory defences would be materially diminished. The legislator would at least have some ground for thinking that he had offered to debtors a reason for paying their debts before an action, instead of a reason for postponing payment till judgment and execution.
1 “Neither the Statute of Gloucester, giving costs to the plaintiff, nor the Statutes of 23 H. 8, c. 15, and 4 Jac. 1, c. 3, mention what the amount of costs shall be; and, in general, the amount is left to the discretion of the court, which is generally exer. cised through one of the Masters. In taxing the costs between party and party, the Master will allow the costs of all regular and necessary proceedings in the cause." “ With regard to the fees to counsel on the trial, the Master exercises a discretion regulated by the nature and magnitude of the cause,” &c. 1 Archbold's Practice, by Chitty, 510-13. The practical effect of our statutes is to leave each party to pay his own costs. A regard to justice would suggest that the party who is entitled to recover costs, should be allowed all the reasonable expense of the necessary proceedings, which he has properly incurred.
The adoption of these suggestions in respect of costs and interest, or something like them, would not stop all vexatious litigation nor all dilatory defences. That cannot be done. There will always be groundless suits and dilatory defences to meritorious actions, without regard to the expense incurred. But no general rules can provide for such cases, without obstructing those who are honestly prosecuting or defending actions. Cases are by no means always clear, and it is often very difficult to decide on which side the right belongs. But it always belongs to one; and if the parties find it necessary to invoke the aid of the court to find out which that one is, the other, who is wrong, ought generally to pay the expense which has been occasioned by his fault. The suggestion here offered has at least the merit of applying to cases involving large amounts, as well as to those involving small ones. It aims also to do justice to the parties entitled to it, as well as to relieve the courts of appeal of part of their work. It may also have a tendency to improve the practice of the law at the bar itself, and cause a more careful consideration of cases before they are tried or argued. It needs only a glance at the reports to show how many cases come before the highest courts, which ought to have stopped in the very lowest, and which are as objectionable in the form in which they come, as in any other respect. This evil does not exist in the English courts to any thing like the extent to which it exists here, and it must be inferred that, whatever.their other defects may be, their system in this respect has some advantages over ours.
Before any general attempt is made to improve the administration of justice, by granting in each action the relief which law and justice require, whether the relief be according to equity or the common law, the efficiency of the courts ought to be increased, by protecting them from being thus overwhelmed by cases unworthy of their consideration. As soon as this is done, and the courts can dispose easily of the matters which come before them, it will then cause comparatively little disturbance to reform the procedure by which causes are conducted. It will be found, too, we cannot doubt, that the present number of judges will be amply sufficient for the prompt despatch of business. This desirable result would be hastened, if there were courts of an inferior jurisdiction so organized as to command respect and confidence, and empowered to try actions involving small amounts. It is surprising to notice how large is the number of cases which occupy the time of the Superior Court in Massachusetts, and yet involve amounts of less than $300. The reason must be found partly in the want of confidence in the inferior courts, and partly in the inducements before mentioned, which lead the parties to continue litigation as long as the law allows it.
There are many other respects in which the Judicature Act suggests matters in our procedure which are defective ; not that it always points out necessarily the best or the only means of improvement, but it does show that improvement is required. Many of them are defects which can be remedied without any serious change in the procedure which now exists. While some of the provisions of the Act are obviously inapplicable to our circumstances, others seem to be perfectly applicable. The Schedule is the most interesting in this respect, for it contains the general provisions relating to pleading, parties, trials, and evidence. As to pleading, our law is in an unsatisfactory state ; it was evidently the intention of our codes and practice acts, that the pleadings should thenceforth be such as would give more definite information of the facts to be brought forward by the respective parties than the common law pleadings. This result cannot be said to have been attained. For the general statements of legal conclusions of the latter system, still more general statements have come into use, which was never anticipated. In equity, very few changes have been introduced into the system of procedure, which we adopted substantially as it existed in
England before the reforms which were made there, more than twenty years ago. Over this latter branch of procedure the court has much greater power and control than over that of the common law; yet the judges, it must be acknowledged, do quite as much as can reasonably be expected in keeping the existing machinery in motion, and little time can remain for them to make repairs or improvements.
Among other matters which require change is the mode of giving information to the adverse party of the facts upon which each party relies, either as grounds of relief or of defence, a subject which is common to the jurisdictions, both of common law and equity. The Schedule to the Judicature Act requires from the plaintiff a printed statement of his complaint and of the relief required, and from the defendant a printed statement of his defence, which are not only to be filed, but also delivered to the adverse party. The copy filed furnishes a record upon which the court founds its proceedings; the copy delivered to the other party informs him of his adversary's case. This is not a new provision peculiar to the Judicature Act, but the delivery of pleadings to the opposite party has long formed part of the English system. This might be an inconvenient provision to introduce here; the printing of the pleadings at the outset would undoubtedly be a great hardship, and cause unnecessary expense in the majority of cases ; and if a plaintiff or defendant were obliged to deliver to every other party a written copy of his pleading, it
would also be a source of trouble. Some provision, however, · ought to be made for giving to each party the information as to his
opponent's pleadings, to which he is entitled. At present the pleading is filed, and the only mode of obtaining any knowledge of its contents is by going to the record itself. If he takes copies, it is at his own expense. It might, at least, be provided, to the great accommodation of lawyers and clients, that copies should be furnished by the clerk of the court to any party, and that the cost of such copies should be taxed in his costs if he prevailed.
1 In Massachusetts, a practice has grown up in some of the clerks' offices of allow. ing solicitors to take the original pleadings in suits in equity, upon their giving receipts for them; the consequence is, that the pleadings are scattered among different solicitors, and often lost; and, as a substitute for a record, there are only the receipts of the solicitors. This practice is as pernicious as it is illegal, and should be stopped at once.
When one has long been accustomed to one system of procedure, whether in law or any other kind of business, he naturally acquires prejudices in its favor, and prefers it to any other; even if it has recognized faults, he is slow to correct them, and when he does attempt to do so, it is often without much regard to the systems which prevail in other communities. This prejudice is generally reasonable as well as natural, and so is the reluctance to change. The change itself always causes some confusion, raises new questions of practice, and requires those accustomed to an established routine to unlearn it and accustom themselves to a new one. To justify a change, the advantage to be derived from it ought to be greater than the evils which it attempts to remedy. But when its necessity is recognized, and the change determined upon, the reform will be a more intelligent one, if the reformers have observed the attempts of others to remedy the same evils and avoid their errors, and profit by their success. No measure of reform has ever been attempted in England or America which has been so comprehensive, and affected so large a population, as the Judicature Act. It may also be safely said that no measure has been more carefully considered and discussed, or with greater learning and ability. The necessity of reform in our own systems of procedure is generally recognized, though opinions vary as to what changes are needed, and how they should be effected. So great a change in the system from which ours were originally derived, and to which they still bear a resemblance in so many points, cannot fail to have its effect here. If reform is to be made, it is to be hoped that the profession most intimately connected with the administration of justice will have the principal part in making the reform. Should this happen, they will come to the task better prepared, and with a fuller knowledge of its requirements, if they have watched the progress of reform in the same matters in England. The year upon which we are now entering will witness the preparation for the change which is to take place there, and the establishment of the rules upon which its success so much depends, and at the beginning of next November it will commence its trial.