It is the time consumed in the pleadings, rather than the pleadings themselves, that leads to the throwing down of arms or a drawn battle. Time, who is a destroyer after his own fashion, is the great healer of wounds inflicted by the poisoned arrows of a legal battery.

Whether the number of actions of tort brought to trial has been materially affected by the New Rules or not, we think that we can perceive a greater cause of their diminution of late years in the gradual settlement and definition of titles to property, corporeal and incorporeal. The Statutes of Limitation and Prescription have done something, the inclosure of commons and the extinguishment of manorial and other rights, more; but the substitution of substantial written evidence for testimony of a shadowy shape, most of all, for the attainment of this object.

To the mere definition of rights by the accumulated decisions of the courts of law, with a due respect for the hundreds of thousands of pounds spent in the construction of the aptly named Statute of Frauds, we do not attribute any very great weight in diminishing litigation, and what may be properly referred to this head is counterbalanced by the increasing perplexities of the statute book.

We believe then that the chief circumstances which have heretofore tended to diminish the cause lists, however much the rate of diminution may have been affected by amendments in the law, are such as are at once innocuous and beyond control.

If our premises are true, we must be prepared, it may be said, to support this proposition: that supposing the costs of a suit were forthwith pared down to the lowest possible amount, and the proceedings simplified, the same general result would be exhibited, namely, diminished and diminishing cause lists. But we are not bound to accept the proposition tendered, in those terms. One effect of such reforms would be of necessity to hasten the progress of a suit and to diminish the interval between the initiative and final steps, and in proportion as that time were diminished, so much less would be the pressure on the parties to effect a compromise. One admitted cause for the excess of actions commenced, over those tried, is their settlement in consequence of the mere lapse of time between their commencement and the period at which they are ripe for trial; but as we have assumed that this cause has operated uniformly, or nearly so, at all times, the above proposition must be amended thus:supposing the costs of suit had, from the year 1780, been at their minimum, and the proceedings simplified to the maximum extent, the same general results would be exhibited, diminishing cause lists. In this form we accept and support it. The only diffe

VOL. XIV. NO. XXVII.

Q

rence would have been that, while the relative proportions in a given series of years remained much the same, the absolute number of causes, past and present, would be found materially increased. But impose these conditions of simplicity, cheapness, and speed for the future, and then, although we have the tendencies to diminution already enumerated still in force, there will be the counterbalance of the new features. The extent of this counteraction, whether merely to keep the cause lists at their present average or to raise them to their former glory, must depend upon the number of cases in which now either the writ is not issued or the action does not proceed to trial from the actual plus complexity, prolixity, and expense of the operation, or the dread of those three attendant graces upon a law suit.

If the whole expenses of the preparation for and conduct of a suit from the commencement to the end be furnished out of the public purse, and witnesses are paid from the same source or are compelled to attend without remuneration, so that an issue might be raised, tried and determined, as far as regards the parties themselves, without mature consideration, and with some such facility as two disputants on the subject of the age of Madame Vestris, or the performances of a three year old, obtain the judgment of the Editor of "Bell's Life," then thoughtless litigants would probably appear before the courts in shoals; as long as the costs of a cause have to be borne by one or both of the parties, that must operate as a material check, the mere amount of those costs having, however, no very perceptible effect.

but

The practical working of the County Courts does not militate against this supposition. It is true that the great majority of cases which are brought to trial in those courts are virtually undefended and indefensible, although both parties appear; but the defendant goes into court either without a professional adviser, or if he has secured the services of an attorney, the latter attends the court upon hasty instructions, and rather to watch the case for his client than having any substantial question to raise. The number of even such cases is, however, diminishing, and will decrease daily.

But in an action in the superior courts, much as costs may be cut down and the form and technicalities of pleading simplified or abolished, it is difficult to conceive any course which will not entail a considerable amount of costs, and also such a lapse of time between the commencement and termination of the suit, as will ensure a certain amount of caution and reflection on both sides before it be carried to trial. We do not anticipate, therefore, that any material increase in the number of causes for trial will follow any scheme of amendment in the practice of the

superior courts. If it should counterbalance the effect of the several statutes which give jurisdiction to the County Courts, and deprive parties of all costs where they recover less than a certain amount in the superior courts, it is more than we anticipate.

Having stated, as we be believe, the main grounds upon which the diminution of the Cause Lists have heretofore depended, it cannot be denied that the actual rate and progress of that reduction have been greatly accelerated by improved legislation.

Enabling parties to state a case for the opinion of the court where the facts are undisputed, the restraint of vexatious actions against parties occupying official situations (a restraint which perhaps in some cases has been carried even too far), and especially the deprivation of all costs where the damages given, and consequently where the damages sustained are trifling, have each and all operated in the same direction. As regards the last mentioned class, the county courts acts are the most sweeping in their operation, but, as has been already observed, their effect is of necessity only perceivable at the close of the table at the head of these observations. It is beyond a doubt, however, that the courts in question (the working of which we agree with Lord Cranworth has been on the whole admirable) have effected a great diminution in the number of causes tried in the superior

courts.

One other source of the diminution of Cause Lists on the circuits, is the spirit of centralization and the facilities of locomotion. We allude to the laying of the venue and consequent trial of actions in Middlesex. Besides those cases where the action is defended merely for the purpose of gaining time, and the plaintiff's attorney lays the venue in Middlesex to obtain speedy judgment; there is a class of cases, an increasing one we fear, where no such emergency arises, and the reason for trying in Middlesex has its origin in some desire for increased costs of journies and the probability of the cause being made a remanet, a desire either shared in or not resisted by the defendant's adviser, the suitors themselves receiving some plausible excuse and not dreaming of the injustice practised upon them.

In conclusion, we must guard against any misinterpretation of our observations. In denying that the heavy amount of costs consequent upon an action operates to any great extent in unduly diminishing the number of causes brought to trial, we do not for a moment seek to vindicate the system which entails those costs. It is not because they may not operate prejudicially in trammelling the proceedings of inexperienced parties, that the injury inflicted upon suitors of experience-alas of how sad

and painful an experience-does not call for abatement and relief. The patient suffering from disease does not the less need the assistance of medical skill because his ailment is neither contagious nor infectious. So the case of the suitor in our courts who has been ruined by his suit does not the less demand attention because his example has neither hurried on nor deterred others from a similar fate. Curtail them as you may, costs, and heavy costs, must attend the trial of causes as long as skilled labour is entitled to and does receive higher wages than mere physical exertion; but there are huge parasitical excrescences from this evil, sometimes of larger size than the parent tree, which require the application of the knife. There is a word for example already mentioned, which is a disgrace to our system and ought never to appear. The term REMANET is of fearful import. A delay of justice is the least evil involved in it. With it are associated anxiety, disappointment, bankruptcy and beggary.

J. E. D.

ART. VI. THE AMERICAN CRIMINAL CODE.

N our last number we gave a slight sketch of the new Code

simplicity, practical views and the truly popular manner in which it was drawn up, has excited great interest in this country, not alone amongst the laity, who always welcome with open arms a startling novelty, but also among the thinking members of the legal profession. To free the "glacier" of the law, if the simile may be permitted us, from the "moraine" which has been accumulating upon it for ages, sullying its purity and retarding its progress, is now the wish of all. Opinion upon this point has undergone great change. The commissioners in this code profess to have accomplished this, and to have rendered their law more simple, less costly, and more direct and speedy in its action. The Law Amendment Society, naturally anxious to ascertain whether the results of this code justify this assertion, sought answers, as before stated, from high authorities to a series of questions propounded with that view. These have been promptly and favourably answered, and by men who, like Chief Justice "Duer," have not simply a national, but a world-wide reputation. We give below the letters hitherto received as a pendant to our last article, and we feel that their tenor fully bears us out in the favourable opinion we there expressed.

The first is from Mr. Justice "Ingraham," one of the judges of the Court Common Pleas in New York, and is as follows:

"New York, Jan. 13th, 1851.

"Dear Sir,—In answer to your favour of the 9th instant, asking. my views in regard to the practical working of the code, I can only give you the results of my experience. I consider the code as containing three prominent alterations in the administration of justice, viz., the abolition of all forms of actions; the union of law and equity jurisdiction in the same tribunal; and, the alteration of the system of pleading so as to abolish technicalities and forms, and to substitute a plain statement of the facts constituting the cause of action or defence. I have no hesitation in saying that in my judgment the abolition of different forms of actions, and the new system of pleading, when properly carried into effect, will prove to be desirable reforms, and that I have seen nothing in administering the law under this system to lead to a contrary opinion. The first relieves the courts from a large amount of litigation upon very immaterial matters, and enables the courts to decide upon the merits of the controversy that comes before them without reference to useless questions of form; and the second relieves the parties from that nicety of pleading which had, under the old system, become burdensome, while it presents to the court on the trial the real merits involved between the parties. Difficulties, it is true, are constantly arising before the courts, in restraining the parties from inserting in the pleadings improper or irrelevant matter, instead of confining such pleadings to the simple statement which the code directs; but as soon as it is understood that such matters will be stricken out or disregarded by the courts, and the pleadings be confined to what the code permits to be inserted therein, I am satisfied that the true issues will more easily be presented for trial, and much time be saved in the courts on the trial of causes. In regard to the union of law and equity jurisdiction, I have hardly had sufficient experience to give you an opinion as to the practical effect of the change. But few causes of this description have as yet reached the courts for trial. So far as I have had an opportunity of forming an opinion, it is favourable to the change. The result will undoubtedly be a great saving of time and expense to the suitors, and a more speedy decision of cases by the courts. The residue of the code relates to mere details of practice. In the introduction of a new system of this kind it must be expected that many omissions and defects will be found, requiring either judicial decisions or legislative action to remedy. It will require time to perfect the system, with a determination on the part of the judges fairly to carry it into effect, and if there could be some plan resorted to by which the contrary opinions of judges on questions of practice could be reviewed, it might be much more efficiently and speedily accomplished. If terms of the Supreme Court, consisting of three or five judges, were appointed to decide appeals on questions of practice once or twice in a year, whose decisions should control all the courts,