est opprobrium of the law? Furthermore, I would allow no failure of a case from the want of a sufficient stamp being affixed to any instrument used in evidence. In a case which occurred not long since, my Lord Dudley was turned round, because it was said there were a few words more in the instrument than we had counted, and the stamp was some halfcrown below the amount required. At the trial of the cause, it was not disputed by us, that the words were more in number than the stamp covered; we took for granted that our adversary had reckoned right, and we did not require the process of addition to be gone through in Court; it was afterwards found out that the defendant had counted the words wrong, and that they fell short of the number men-. tioned in the Stamp Act. The plaintiff, in consequence, got a rule for a new trial, and soon after he had a verdict. But suppose we had been wrong and our adversary right, what difference would that have made in the justice of the cause, which was truly an undefended one? I would allow the judge to inflict a penalty of L.20, of L.50 if necessary, to protect the revenue, instead of L.10 for the want of a stamp; but I would not allow the party to be turned round, and to lose his trial, because he had got a wrong stamp, or no stamp at all, affixed to his agreement or deed.

Let not the House suppose that grievances such as I have been describing to flow naturally from the present system, are imaginary and theoretical; I can assure the House, from my own daily experience, that they are not: they produce constantly a cost or a delay, or both, amounting to the positive denial of justice. To give an illustration of some of the parts of the system in its workings, I shall read the

letter which I hold in my hand, from an eminent practitioner in the law. The widow of a Welsh clergyman was obliged to bring an action upon a mortgage-deed for the payment of the mortgagemoney and interest, and for performance of the covenants in the deed. She might have foreclosed by a proceeding in equity; but preferring the delays of the King's Bench to those of the Chancery, she brought an action of debt of the simplest possible kind, both in its nature, and in the form of the proceedings; and the House shall now hear from her respectable solicitor himself, what was the progress and termination of that action:-"The defendant was a Member of Parliament, and some delay, as "is usual with such defendants"-(I beg pardon, Sir-of course, I am not answerable for the terms of the letter)" took place in enforcing an appear66 ance. When the declaration was delivered, the "defendant demanded oyer of the bond, and that "obtained, made as many applications as the judge "would allow for further time to plead. At the "expiration of this period, he pleaded-1st, Non "est factum-2d, Solvit ad diem-3d, Solvit ante "diem*-4th, Solvit post diem-5th, Performances.

66

Had the plaintiff's pleader chose, the law enabled him to demur to this plea (but it would have increased the delay and served the defendant's purpose). The ground of the doctrine, that paying before the debt falls due is no answer to the action seems not very intelligible, but it is now settled law. The reason assigned (in Cass v. Tryon-though there are cases contra, see Cro. Eliz. 143, Dyer, 222. and also 14 Anne, c. 16, § 12) is, that if the verdict on that issue goes for the plaintiff, it by no means follows that he has a right to recover, for he may have been paid at or after the day. But so it may be said of a plea of infancyor, indeed, of solvit ad diem itself-for though the verdict negative that plea, non constat that there may not have been duress or a release. The

"It is needless to add, all these pleas were pure legal fictions. The plaintiffs, in their replication, "took issue on such pleas as concluded to the contrary, and assigned breaches of the condition, "according to the statute. The breaches assigned

66

were, non-payment of the principal—non-pay"ment of the interest-and non-performance of the "covenants of the mortgage-deed. The defendant, "for the purpose of splitting the second into two "issues, and thereby creating the delay of an issue "in law, to be tried before the Court in banco, and "an issue in fact, to be afterwards tried at Nisi "Prius before a jury, demurred to the last assign"ment of breaches-a sham demurrer for delay. "The plaintiffs joined in demurrer, and made up " and delivered the paper-book and demurrer-book. "The defendant, in order to entitle himself to bring "a writ of error for delay, without giving bail, then "suffered judgment to go by default, for not re"turning the and demurrer-book. The conpaper sequence of this was, that all the pleas, replica"tions, rejoinders, and demurrer, became useless, "and were struck out of the record; and the plain"tiffs had to execute a writ of enquiry before the "Chief Justice, under the statute of William III., "to assess damages on the breaches suggested. But "these proceedings had answered the purpose of "harassing the poor defendant with useless and expensive litigation, swelling the pleadings from five "folios to one hundred and eighteen; and they had

66

true test of a plea (or an affirmative issue tendered at any stage of the pleadings) plainly is this-if its being found for him who pleads it decides the matter in his favour, no new fact being averred on the other side, it is good-if not, bad,

66

66

already accomplished much delay, having occupied "four terms: the bill was filed in Trinity Term, "the pleas and replication in Michaelmas Term, the "demurrer and joinder in Hilary Term, and the "final judgment was obtained in Easter Term. "The defendant then brought a writ of error, with" out the slightest pretence of actual error; and "that proceeding, of course, delayed the plaintiffs "four terms longer. All this was necessarily at"tended with expense, grievous to a poor person, "as the party in this case was. The costs of the judgment were taxed at £80, 4s., and the costs "in error at £19, 10s., making together £99, 14s. "for the costs, and two years for the delay in an "undefended action, in which the length of the de"claration was five folios! Comment on such a "case would be a waste of words." It would indeed! But if it be wanted, Blackstone shall be the commentator. "So tender and circumspect," saith he, "is the law of England in providing that no man's right shall be affected by any legal proceeding; in requiring that every complaint be accurately and precisely ascertained in writing, and be as pointedly and exactly answered; in clearly stating the law and the fact; in deliberately resolving the former and indisputably fixing the latter by a diligent trial; in correcting such errors as may have arisen in either decision, and in finally enforcing the judgment, when nothing can be alleged to impeach it! So anxious it is to maintain and restore to every individual the enjoyment of his civil rights, without intrenching upon those of any other individual in the nation,-so parentally solicitous is our whole legal constitution to preserve that spirit of

equal liberty, which is the singular felicity of the British nation." *

I must now tell the House, that besides the £99, 148. taxed costs, this poor widow had to pay £30 for extra costs, which she never received a shilling of from the defendant, and which she had to defray after he had handed his share of the costs over to the plaintiff's attorney. In prosecuting an undefended cause she paid this sum, and if it had so chanced that the defendant, instead of being merely a distressed man (for I happen to know the gentleman in question, and that though a distressed, he is not an oppressive man); if he had been such a character as was once known in the northern provinces, and as we have had represented on the scene,-pertinacious, litigious, grasping, oppressive, with a long purse to back him in defending acts of injustice and cruelty, he would have resisted at every stage of the action by counsel and witnesses; he would have had the demurrer argued before the Court; he would have tried the issue at Nisi Prius; he would have carried his Writ of Error through the Exchequer Chamber into the House of Lords; and then the extra costs, instead of thirty pounds, would have amounted to I dare not say what sum, knowing that costs to the amount of hundreds have been incurred to recover a debt of twenty pounds. "So tender is the law of England in providing that no man's right should be affected by any legal proceeding-so parental its solicitude to maintain and restore to every individual the enjoyment of his civil rights, without intrenching upon those of any other person what

soever!"

* See page 423, supra, where the same passage is cited.