what has hitherto been adopted. We would first estimate the annual value of the office, and we With the exception of this last suggestion, we concur with our cotemporary. We think that a disadvantage would arise if the latter option were allowed, for it would encourage the practitioner to relax his exertions, and then to rely upon the Treasury indemnifying him for his falling off of business. We shall return to this subject when the Irish measure is introduced. SIR, To the Editor of the Irish Jurist. I perceive by the printed copy of the Absconding Debtors Bill in your journal that it contemplates arresting absconding debtors only when the amount sworn to be due to the creditor, amounts to £20. As the law at present stands—and which the above Act does not attempt to repeal-if you obtain a judgment for any sum over £10, exclusive of costs, you can issue execution against the person; but if the above Act pass with the words twenty pounds in it, a person, either before or after service of a writ of a lesser amount, would have full privilege to anticipate his arrest, and abscond; although, if he remained until twelve days after service of a writ for a debt over £10, judgment could be marked against him, and execution issued against his person. To be consistent, the words upwards of ten pounds, exclusive of costs, should be substituted for the words twenty pounds. But I would humbly suggest that no limitation should be put on a creditor as to the amount he could issue a ca. sa. for; it should be left at the option of the creditor whether he proceeds against his debtor's goods, or his person; but controlling him to the extent that he should leave with the debtor the implements of his calling to the value of £5. And when the person of the debtor is intended so to be taken under a cu. sa., or the Absconding Debtors' Act-the creditor should, previous to issuing such execution, make an affidavit that he believes the debtor to be solvent, and able to pay his demand. But on the defendant filing a schedule in the Insolvent Court, shewing that he is not possessed of goods except the implements of his calling of the value of £5, or any ready money, and where the creditor cannot shew to the satisfaction of the Insolvent Commissioner that he is possessed of goods except as above, or entitled to any ready money, or is in any employment, a portion of the salary of which could be apportioned for the payment of his detaining creditor, thereupon he ought to be discharged from ar rest. It is a complaint too common that persons having fine salaries, but living in boarding or lodging-houses, possessing no goods beyond their portmanteau and walking-stick, cannot be arrested when the creditor's demand is under £10. Your obedient servant, JOHN JERVIS DOCKRILL. [Our correspondent does not appear to remember that the Bill in question only follows the 3 and 4 Vic. c. 105, which fixes the limit below which no arrest on mesne process can take place, at £20.] E. I. J. Just Published, price 8s. 6d. Free by Post, Price 5s., by Post, 5s. 6d. TH JUSTICES' MANUAL:-containing THE JUSTICES PROTECTION ACT; THE SUMMARY JU. HE NEW LAW RULES, with PRACTI-GREEN. Correspondents will please give the Name and Address, as the THE CAL COMMENTARY, CASES UPON, and FORMS ADAPTED TO, EACH RULE. By EDWARD JOHNSTONE, Esq., M. A., Barrister-at-Law. NEW LAW RULES. Just Published, price 10s. Ed., or bound with the Rules, 14s,, free by Post HE COMMON LAW PROCEDURE ACT, THE with EXPLANATORY COMMENTARY, PRACTICAL NOTES, and FULL INDEX, by WILLIAM D. FERGUSON, Esq., Barrister. at.Law. All communications for the IRISH JURIST are to be left, addressed to the Editor, with the Publisher, E. J. MILLIKEN, 15, COLLEGE columns of the paper cannot be occupied with answers to Anonymous Communications-nor will the Editor be accountable for the return of Manuscripts, &c. Orders for the IRISH JURIST left with E. J. MILLIKEN, 15, COLLEGE GREEN, or by letter (post-paid), will ensure its punctual delivery in Dublin, or its being forwarded to the Country, by Post, on the day of publication. TERMS OF SUBSCRIPTION-(payable in advance): Yearly, 30s. Half-yearly, 17s. Quarterly, 98 Printed by THOMAS ISAAC WHITE, at his Printing Othce, No. to FLEET.STREET, in the Parish of St. Andrew, and published at 15 COLLEGE GREEN, in same Parish, by EDWARD JOHNSTON MILLIKEN, residing at the same place, all being in the County of the City of Dublin, Saturday, April 22, 1854, DUBLIN, APRIL 29, 1854. THE Common Law Procedure Amendment Act has now in degree had time to develop its machinery, and we regret to say that, so far as it has done so, the public have gained little benefit by the change. The framers of this memorable measure have, in our opinion, fallen into the capital error of confounding brevity and absence of artifice and form with simplicity. They saw, in common with their English cotemporaries, that the existing system of special pleading, deflected by the perverse ingenuity of the modern pleaders from its ancient beauty, too often sacrificed substantial merits to mere points of form; and so far we cordially agree with them. But they did more; for, not satisfied with a moderate measure of reform, which, without being regarded necessarily as final, might well have been taken, as a step in the right direction, where to pause and well consider the next move, they have sought entirely to eclipse their compeers by the production of a piece of legislation for our province of the empire, 235 236 Practice Security for costs-Affidavits of merits-16 & 17 Fic. c. 113, s. 52......... 236 based indeed upon the English Act, but, unlike it, dealing with no sparing hand with the fundamental laws of pleading. We fear that the able and truly patriotic authors of this new system drank too deeply of the Circean draught of popular applause. "Special pleading" we all know has been long employed as a term of reproach in common conversation to designate the sophistries to which hard pressed disputants are driven to make the worse appear the better reason. Hence the public naturally recoil with horror at the bare idea of the existence of such a craft as "special pleading," and when a bill was introduced into Parliament, the object of which was briefly announced to be that of abolishing special pleading, the authors were hailed universally as public benefactors, and from the leading journals of the metropolitan press down to the most paltry provincial newspaper, a universal ery arose, that a glorious legal era was at hand, in which cheap, speedy, and certain justice was to be had, for that the odious "special pleading" was likely soon to be heard of no more. Encouraged, doubtless, by these laudations, without, perhaps, considering how utterly worthless they were, as coming from the quarters whence they did, the framers of the Irish bill carried forward their measure, and it became law. We protested at the time against the changes to which we particularly allude, and every day's subsequent experience only serves to confirm in our own mind the opinions which we then formed. It is, however, never too late, when a false step has been taken, to admit the fault and recede; and having, as we think, a guide in the English Act as to what we should fall back on, we feel the greater encouragement in feebly endeavouring from time to time to point out the difficulties into which we have rushed. We propose to confine our observations this time to the perplexity in which counsel are now daily feeling themselves plunged, when called on to prepare defences. Now, in the first place, all former forms of action are, by section 5, abolished; so that the defendant will not have the assistance of the phraseology peculiar to each to guide him in the ascertaining of the drift of his opponent. As all personal causes of action may now be joined, the writ of summons and plaint may possibly be of the most piebald character, combining probably seven or eight charges of the most diversified description. The first difficulty which is now cast upon the pleader is to know what the plaintiff means to go for. If it be a money demand, it is so far plain sailing. The particulars indorsed will explain any probable obscurity in the writ. But it is in actions for wrongs that the difficulty will chiefly arise. Take, for example, a personal action of this nature, in which the plaintiff complains "for that the defend. ant on, &c. at Sackville-street, in the City of Dublin, did forcibly and negligently drive a certain vehicle against the plaintiff, and thereby broke the plaintiff's thigh, and also injured a certain horse belonging to the plaintiff, whereby the said horse became lame, and the plaintiff was obliged to incur an expense of £100." Suppose that the pleader's instructions are that the plaintiff was intoxicated at the time, and put himself in the defendant's way, and that the horse was not his property at all. It is quite clear that under the old system there would at least be no difficulty in understanding what the charges preferred were, for, if the plaintiff meant to go for a substantive injury to the horse, he should sue for it in an action on the case, the wrong done to the man being a trespass. Thus it should have been made the subject of two separate actions. We quite agree that here was a fair abuse to be remedied, and that it was right that one record should include both the injuries in question. However, assuming that both might have been joined in one declaration, as would have been the case had the wrong doer been the defendant's servant, instead of himself, these must have been the subject of two distinct counts, and not merely, as the 10th section says, " true and succinct statements of the plaintiff's causes of action." Herein the English Act differs from our own. Well, the pleader feels embarrassed, not knowing well what to do. If the plaintiff goes for the assault and battery to his own person, merely stating the broken thigh, the lame horse, and the £100, so many as appeals to the pity of the court and jury, the defendant would be content to go to trial on the defence of inevitable accident. But then the risk he incurs makes him pause, for he remembers that sec. 58 has enacted, that "all facts stated in any summons and plaint and not denied in the defence, shall be deemed to be admitted for the purpose of the suit." Hence, he fears that if it should turn out that the plaintiff intended to rely on the matter of aggravation as a cause of action per se, he might on the plea being filed, mark judgment as for want of plea on the part left unanswered. Here a new difficulty strikes the pleader, for he incurs the risk in pleading improvidently, of perhaps moulding the declaration in a manner different from what his antagonist had intended, and in suggesting to him an idea which he may have never had before, but which he may nevertheless avail himself of, namely, of a second cause of complaint. But it may be said, why may he not apply to the court or judge, on motion, to cause the plaint to be amended, under section 73, as leading to embarrassment? This motion would, no doubt, be aided by the fact that there had been no division by paragraphs, as required by the 34th rule, and hence that prima facie it imported one cause of action. Then the struggle on the part of the plaintiff will be to persuade the judge that the matter about the horse is either aggravation merely, or at all events only part of one cause of action. So the motion is refused with costs. Next he pleads two pleas; but the judge before whom he goes, thinking that the injury to the man is the substantial ground of complaint, and that one plea is enough, in the exercise of his discretion, subsequently confirmed by the full court, puts the pleader to elect one defence. He accordingly pleads that the plaintiff was intoxicated, and that he placed himself in the way of the defendant, who ran over him by un avoidable accident, saying nothing of the horse or the broken thigh. The motion to plead double has been, of course, ex parte. Then the plaintiff marks judgment upon the uncovered part of the plaint, and when the defendant moves to set this aside on the ground of surprise, the court either refuses the application, or grants it on very stringent terms, because that he might, instead of having sought to plead two NEW LAW BOOKS. Just Published, price 7s. 6d., by Post, 8s. THE LAW OF JUDGMENTS ANE OF SHE RIFFS, in relation to WRITS of EXECUTION and INTERPLEA- Just Published, price 8s. 6d. Free by Post, separate defences, somewhat inconsistent in their CAL COMMENTARY, CASES UPON, and FORMS ADAPTED By EDWARD JOHNSTONE, Esq., M.A., Barrister-at-Law. NEW LAW RULES. Just Published, price 10s. 6d., or bound with the Rules, 14s,, free by Post, THE COMMON LAW PROCEDURE ACT, and FULL INDEX, by WILLIAM D. FERGUSON, Esq., Barrister. with EXPLANATORY COMMENTARY, PRACTICAL NOTES, at.Law. character, have made one homogeneous defence, large enough to embrace both man and horse. Again, it may in any case be a considerable question with a pleader as to what notice should be taken of the amount of special damage; whether, in fact, any averment at all in the summons and plaint, ever so irrelevant, should be passed by for fear of its being, if not a ground of action, at least sented the profession and the public with an accurate representation of used as evidence at the trial if not contradicted. Thus the defendant, by the exercise of caution in negativing frivolous allegations, may be actually swelling them into importance, and perhaps stamping them with the character of independent causes of action. Mr. Ferguson, in the very able and lucid work before us, has pre. the law as it now stands."-Dublin Evening Post. "The present treatise is deserving of the reputation which Mr. Fergu. "His views are entirely in unison with our own."-Irish Jruis. the elaborate index, combine to afford all possible facuity in studying and "Mr. Ferguson has rendered good service to the general public, as well as to the legal profession, by the lucid manner in which he has placed Mr. Whiteside's Reform Measure before them. The Publisher, Mr. Milliken, This homely and inadequate illustration may suf fice to communicate our idea of one powerful blem-has not been wanting on his part. The volume, for neatness and clearness ish in the new Act. It will by destroying form, create immense confusion and embarrassment, and vicious as was the pre-existing system of special demurrers we should rather see that system revived than this wretched mass of confusion continue. We have above given a very simple example. Many are daily arising in practice infinitely more puzzling. No doubt some of our profession may reap for a time a golden harvest from the solution of these legal problems; but we hope and believe that the time will never come when the members of the Bar will desire that the efficiency of the law shall yield to their private emolument. The motive of the framers of the Act was at least nothing of this sort. Their views were of the purest and most liberal character, though we fear that zeal for law reform has outstripped their prudence. We hope that they will not hesitate to retrace their steps where manifest injury has been done. We shall hereafter advert to some other matters in which this Act has miscarried. of type, is creditable to the Irish press."-Evening Mail. THE PRACTICE OF THE CIVIL BILL COURTS in Ireland. As altered by the statute 14 & 15 Vic. c. 57, with an appendix of several statutes relating to the law between landlord and tenant, and to the law of evidence; with a Commentary, comprising the decisions upon the re-enacted sections of the previous Acts of the Civil Bill code, and the analogous sections of the County Courts Acts, (England) with a And the Rules, Orders, and Regulations prepared by copious Index. the Assistant Barristers, with Observations, &c. By JOHN BLACK HAM, Esq., Barrister-at-Law. Dublin: EDWARD J. MILLIKEN, Law Publisher, 15, Collegegreen, |