suspicion of collusion. At the same time, the payment of a large sum into court would afford a wealthy defendant the means of avoiding the shame of exposure, or would place the plaintiff in the disadvantageous position of seeking vindication of honour by means of publicity, at the risk of having to pay costs, if the damages awarded to him did not exceed the amount paid in by the defendant. On the other hand, it must be admitted that many actions of tort are of a very trifling character, and are brought for the mere purpose of obtaining costs; though it should be added, that this evil has been materially corrected by the statutory provisions which deprive a plaintiff of costs in such actions, if the damages recovered do not amount to a specific sum.

We think a middle course might be pursued, and that a discretion might be left to the court or a judge to allow money to be paid into court. The payment would be allowed where the object of the suit appeared really to be pecuniary compensation. Where character was involved, the means would, of course, be withheld from a defendant of avoiding the public vindication of the plaintiff's character by paying a large amount into court.

AS TO ADEQUACY OF COMMON LAW PROCEDURE.

We have now passed in review the different stages of an action at law, and the incidents thereof, suggesting such alterations as appeared to us to be desirable. It remains to be considered whether the common law system of procedure, even thus amended, can be deemed sufficient to effect the objects which it is designed to accomplish; after which, there will remain the, perhaps, still more important question whether the scope of this procedure, or, in other words, of the jurisdiction of the courts of common law, is not itself of too limited a character.

That the powers and machinery of the Courts of Common Law are insufficient, even within the scope of their own jurisdiction, is clear from the fact that, for the very purposes of an action, parties are frequently under the necessity of resorting to a Court of Equity to compel the discovery either of facts exclusively within the knowledge of an opposite party, or of documents, as to which they may be ignorant in whose custody or power they are.

Attention was drawn to these defects by the former Common Law Commissioners, in their second report, pp. 20 to 23 and 70 to 73. Their suggestions have, however, been but very partially acted upon, and it is therefore necessary that we should state how the law now stands, and the amendments which we propose.

INSPECTION OF DOCUMENTS.

Independently of statutory enactment, the Courts of Common Law have exercised the power of compelling the production of documents for the purpose of being stamped, so as to be available in evidence, as also the inspection of documents upon which the action or defence is immediately founded, as well as of documents necessary for the purpose of evidence in which the applicant has a direct interest, and which are held by the opposite party in a fiduciary capacity, and of certain documents of a public character, such as the rolls of a manor or corporation books.

Besides this, these courts have by the act of 15 & 16 Vict. c. 99, s. 6, upon the application of either party to an action, power to compel the production and inspection of a document in the possession of the opposite party, in all cases in which such inspection may be ordered by a court of equity. This power can, however, only be exercised by a court of common law, when the party applying can satisfy the court that the document of which he seeks the production is in the possession of his adversary; and many applications under the statute have failed for want of such a power as courts of equity possess, but which the statute did not confer upon courts of common law, namely, that of compelling a preliminary discovery by either party of what documents he has in his possession or power relating to the matters in question. If that preliminary discovery could be obtained, the court could proceed, without being perplexed by any difficulty in tracing the custody of the documents, to order the production of such as ought to be produced : without the power of compelling such a preliminary discovery, the statute above referred to is comparatively_valueless. There can be no doubt that it was the intention of the Legislature in framing it, to grant to courts of common law a power of discovery of documents as extensive as that possessed by courts of equity; but, from the defect above pointed out, the intention of the Legislature has been frustrated; and it is essential, in order to give effect to that intention, that each party should have a right to compel the other to discover and set forth what documents relating to the cause are in his possession or power.

DISCOVERY.

It thus appears that the courts of law have power to compel inspection of documents, but that these courts possess no means of compelling a discovery whether the documents sought for are in the possession or power of the opposite party. As to facts within the knowledge of an adverse party, the courts of law possess no power of compelling discovery, except indeed that, by the recent change in the law, each party may be called as a witness by his opponent; but it is obvious that this course will only be resorted to in the most desperate emergency. It cannot reasonably be expected that a party ignorant of what his adversary may be prepared to swear, shall put so adverse and interested a witness into the box, without having had any opportunity of previous interrogation. For the purpose of discovery, previous to the trial, whether of facts or of documents, the party desiring it has now no alternative but to resort to a court of equity. We have no hesitation in saying that this is altogether wrong. We assert as an indisputable proposition that every court ought to possess within itself the means of administering complete justice within the scope of its jurisdiction. The necessity of resorting to a court of equity for discovery involves fresh process, much delay, and additional expense; the greater part of which might be avoided by causing the necessary proceedings to be had in the court in which the suit is already pending. It is true the courts of law do not at present possess any machinery analogous to that of a bill of discovery. But we think it would be an additional advantage to get rid of so cumbrous and expensive a mode of proceeding; and we see no difficulty in devising a simple but efficacious mode of attaining the end desired.

Discovery of Documents.

Where the discovery sought is limited to documents, there will be no necessity for any more formal proceeding than an application to a judge, founded on the affidavit of the party applying of his belief that the document desired is in the custody of the opposite party, or that he knows in whose custody it is, and that it is in his power to produce it; whereupon an order may be made by the judge that the party against whom the order is made shall answer on affidavit, stating what documents are in his possession or power, or what he knows as to the custody they are in, and whether he objects (and if so, on what grounds), to the production of such as are in his power, upon which, if necessary, the judge may make such further order as may be just.

Discovery of Facts.

We by no means, however, confine our recommendation of conferring power of discovery on the Common Law Courts, to documentary matter alone, but include in it the examination of the parties upon all matters relating to the questions in dispute.

This opportunity for examination prior to the trial will be useful, not only for the purpose of discovering facts exclusively in the knowledge of the opposite party, but as the means of sparing the trouble and expense of producing evidence of facts which he may be prepared to admit; while, on the other hand, it will tend to make more clearly manifest the matters which are alone in contest between the parties.

In some cases such a preliminary discovery may even altogether obviate the necessity of any trial, by compelling the one party or the other to admit facts decisive of the case upon the merits, so as to show that proceeding to trial would be a mere abuse of the forms of justice. A power of preliminary discovery would likewise tend to expose the motives of groundless actions brought for vexation, and of unfounded defences set up and persisted in for delay. It would, moreover, have a most wholesome effect in preventing false pleas from being put on the record; for as soon as the examination of the party had made manifest the falsehood of the plea, a judge might be applied to to disallow the pleading, at the expense of the party pleading it. If the very existence of such a power had not the effect of preventing the necessity of its exercise, it would at least aid the court in extirpating frivolous and improper litigation.

Written Interrogatories.

We propose that either party in a cause shall be at liberty to deliver to the opposite party, provided such party would be liable to be called as a witness, or his attorney, written questions on the subjects on which discovery is sought; and to require such party, within a time to be fixed, to answer the questions in writing upon oath, sworn and filed in the same manner and under the same sanction, in case of falsehood, as an affidavit; and that the party omitting to answer within the prescribed time shall be subject to the consequences of a contempt of the court.

Oral Discovery.

But we by no means propose to confine the power of interrogating such adverse party to the written questions above referred to. We

think that in many cases an opportunity should be afforded for oral examination. At the same time care must be taken that the power of personal examination be not abused by being made a means of vexation and oppression, when used against weak or timid persons. We propose, therefore, not to leave it at the option of a party to demand an oral examination, but to give the court, or a judge, discretion, on the application of either party, in case of an insufficient answer to the written questions before referred to, or in any other case in which it may be made to appear essential to justice, to direct an oral examination of the other party before either a judge or a master of the court; or, if it shall be deemed expedient, in a country cause, before the judge of any County Court, to whom it may be thought most convenient to refer such examination. Each party, when under examination, should be confined to answering the questions propounded by his adversary, with such explanations as are necessary to prevent a categorical answer from being the means of misleading; and it should be optional with the party interrogating to use the answers or not, as he may now do with regard to the answers given on a bill of discovery.

INSPECTION.

Inspection of Premises and Chattels,

There remains to be considered, as connected with this subject, another defect in the procedure of the Courts of Common Law, viz., the want of adequate means whereby a party may procure for the jury or for himself or his witnesses, an inspection, previous to the trial, of premises or chattels in the possession or under the control of his opponent.

Inspection by Jury.

As to inspection by the jury, the 23rd section of the Jury Act, 6 Geo. 4, c. 50, allows a rule for a view by the jury, but confines the view to the place in question." The construction which has been put upon this act is, that it only applies to cases of a local nature. In an action brought to recover the value of work done to the defendant's house, the defence being the bad quality of the work, a rule for a view of the house was set aside, yet it is obvious that the inspection by the jurors of the work in such a case would either have materially assisted their judgment on the issue raised, or have enabled them to understand and apply the evidence more readily than if they had not seen the premises. And numerous other cases might be adduced in which an inspection would be of great advantage, as when the quality or construction of machinery, or the condition or value or identity of goods, is in dispute.

Inspection by Parties and Witnesses.

Inspection by parties and their witnesses is in many cases requisite, in order to do equal justice. The party in whose possession the object sought to be inspected is, has opportunities of showing it to any persons, and selecting such only as are favourable to his own views; other evidence, equally important, may be excluded altogether, if the opposite party is debarred from obtaining inspection.

We therefore recommend that either party may be at liberty to apply

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to a court or a judge for an order for the inspection by the jury, or by himself or his witnesses, of any premises or chattels the inspection of which may be material to determine the question in dispute.

An additional reason for adopting this recommendation is, that the controversy between the parties might be decided by the inspection. If the persons inspecting did not entertain an opinion favourable to the party on whose behalf they were called, further litigation would be felt to be useless, and the action might be settled without further expense.

The principle of this recommendation is recognised by the stat. 15 & 16 Vict. c. 83, s. 42, under which either party may, in actions for the infringement of patents, obtain such an order for an inspection as a judge may think fit.

In some few cases Courts of Equity, it is true, exercise a power of ordering a view; but even their jurisdiction is in this respect limited, and, as we have already shown, suitors in the Courts of Common Law ought not to be driven to Courts of Equity for complete redress.

Extension of Powers of Execution.

Whilst upon the subject of improving and enlarging the existing procedure, we may suggest, that the remedies of creditors against the property of their debtors might be made more extensive by enabling a creditor after judgment to attach debts and moneys of his debtor in the hands of third persons, and so obtain satisfaction of his judgment. We are not aware of any process, either in the Superior Courts of Law or Equity, in suits between subject and subject, by which this can directly be done, though the course of proceeding under writs of execution at the suit of the Crown, and by way of foreign attachment in the Mayor's Court of London and some other cities, as well as in the courts of many foreign countries, shows that such a remedy would be practicable and useful. The 12th section of the stat. 1 & 2 Vict. c. 110, for extending the remedies of creditors against the property of their debtors, has proved of but limited use in practice, by reason of its only applying to specific coin or bank-notes of the debtor which can be taken without an assault upon him, and debts secured by cheques, bills of exchange, promissory notes, bonds, specialties, and securities for money, which the debtor can easily secrete, and the amount of which, according to the present law, cannot be recovered by the creditor without their being actually seized, whilst debts, which are not so secured, or the securities for which cannot be actually seized, are not available for the satisfaction of creditors unless under a regular bankruptcy or insolvency.

We recommend that a creditor having obtained a judgment should be allowed to proceed by a process similar to foreign attachment against the debtors of his debtor, and to procure payment of their debts to himself; and, further, that he should be entitled to a discovery, in the manner already pointed out, of what property the debtor has, capable of being taken in execution."

ADDITIONAL REMEDIES.

We have hitherto directed our attention to improving the procedure peculiar to the Courts of Common Law, namely, the suit or action at law. It remains to be considered how far this remedy, so amplified and improved, affords adequate means for enforcing common law rights,