Willoughby v. Willoughby, 98, 244, Yates v. Thearle, 162

v. The Caledonian Railway Zuluetta v. Miller, 126

INTRODUCTION.

It is written that there is nothing new under the sun; and the history of common law procedure illustrates the saying. All that has ever been evil in it has arisen from an oblivion of its ancient principles; and every step in its improvement is a recurrence to the past, every real reform is a restoration. This may appear paradoxical to those who have not studied its old records; but the writer finds in them the proof that the paradox is truth.

Nothing could be more practical, more simple, or more just than ancient common law procedure; in substance it contained every element that could adapt it to all the exigencies, or satisfy all the requisitions, even of this commercial age. At the very outset, as respects its process, (a) a distinction was drawn which all our enlightenment has only just arrived at, after generations of com

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(a) "Mirror of Justice," c. 2, s. 6.

B

placent "progress"-the distinction between actions relating to matters of account, or mere money demands, and actions relating to realty. In the former, the process was by attachment and bail, or by summons and arrest; and in the latter by the less peremptory process of summons and distress. Nor was this all; the distinction pervaded the whole course of procedure. Where the claim was matter of account it was at once compulsorily referred to auditors (assigned by the Court), whose jurisdiction was summary, whose investigations were conducted by the examination of the parties upon oath, and whose adjudications had all the effect of the judgments of the Court (a). And if the claim, although not matter of mere account, was one of simple debt, which must involve privity of contract, and must rest on credit, and depend in most instances on the personal communications of the parties, there was a proceeding called "wager of law," in which both the parties were examined summarily on oath, and to which if the defendant resorted, while he could by oath purge himself of the claim, that did not suffice unless twelve other men of good character attested upon oath to his credibility; and on the other hand, by resorting to this course, he precluded himself from putting his opponent to the proof of his claim by pleading a

(a) Bro. Abr. Account. In matters of account the defendant could not plead a denial of his liability, which was solely for the auditors. 3 Edw. III. 53. See notes to C. L. P. Act of 1854, s. 1.

denial of it; so that practically it came to this, that the parties themselves were examined upon oath without delay before a jury of twelve persons, the party sued relieving the plaintiff from the onus of proving the debt, and himself undertaking to disprove it to their satisfaction (a).

Matters of debt and of mere account being thus summarily disposed of in such a manner that there was no refuge for dishonesty, no means of delay, in other cases not of so pressing a character, and in which the questions must depend upon evidence, oral or written, other than that of the parties themselves, the common law first held out every encouragement to them to arrange the dispute without resorting to litigation, and in arbitration afforded ample means for voluntary adjudication of matters of fact and law, while for questions of law a yet greater facility was afforded for prompt and inexpensive determination; because, by reason of the state of the profession, in those more simple times, when the client had unrestricted intercourse with his counsel, and the counsel-who less practised in a profession than exercised a vocationhad more familiar intercourse with the bench, the parties, by their advocates, could come down to Court without ceremony, and "put a case" to the judges, who would debate and decide it without difficulty.

(a) 14 Edw. III. 3; 8 Hen. VI. 29; 13 Hen. VII. 4; Keil. 39; 13 Hen. VI.; Keil. 41.

The jurisdiction by arbitrament of course could only apply where the parties were agreed, if not as to the question to be determined, at least as to the manner of determining it. They were not so likely, however, to agree as to the latter, if they did not as to the former; and if they did not as to the former, that is, if they could not agree as to the question in dispute, it would most likely be, because there was none really in dispute, but it was simply a claim on one side resisted, rather than disputed, on the other. Now as in no system of civilized jurisprudence could men be coerced without law, and as law indeed is merely legalised coercion, it was to this class of cases, in which as the parties could not agree even as to the question in dispute, and as to whom, therefore, the jurisdiction must be founded, not on consent but coercion, to these cases the system of pleading was applied and the compulsory procedure of an action at law. The first object necessarily was to elicit the question in dispute, (if there were one,) the next was to determine it, and determine it in such a way as that dishonesty, which there would be every reason to suspect in such cases must rest on one side or the other, should not succeed in defeating justice. With this view, at the very outset, regard was had to that which characterised common law procedure throughout—plain and simple truthfulness; and the writ issued as the foundation of the suit stated clearly what it was the plaintiff sought, and why he sought it, so that there might