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the system so happily begun in a late session of Parliament, (1825,) of preventing writs of error for the purpose of delay, would receive a great improvement, if the writ of error were made to lie from all the superior courts of common law immediately to the House of Lords.
Mr Miller's remarks on the doctrines of common law and equity are in general valuable, though his conclusions are, in our judgment, sometimes erroneous. We must content ourselves with noticing one instance on which we dissent from, and one on which we agree with him. He thinks that “ That part of the common law of England which pronounces agreements without consideration, otherwise termed voluntary agreements, to be invalid, might be submitted to re-examination."-P. 251. " That it may be fairly questioned whether the distinction which now subsists in courts of common law between deeds and agreements, ought not to receive some modification.”—p. 254.
And he goes on to suggest that the sealing and delivery of deeds might be dispensed with, and signing in the presence of witnesses substituted for them. There is here some little inaccuracy of expression, as though the author had forgotten for a moment that an agreement may be under seal, and consequently may be a deed. We shall understand him, however, as he probably means to be understood, to say, first, that the law ought to enforce a voluntary agreement, though not proved by an instrument executed in legal form; and, secondly, that the form appointed by the law for the execution of those solemn instruments which are to express the final settlement of transactions, and which, supposing fraud out of the case, are to be umimpeachable as between the parties, ought to be altered. Admitting the obligation in foro conscientiæ of gratuitous promises, we think it would be highly dangerous for any human legislature to enforce the performance of such promises, unless they are proved by such evidence as may clearly show, not only that they were actually made,-made deliberately, and with a firm intention on the part of the promiser, according to the understanding of the other party at the time, of binding himself thereby,—but also whether they were made under any, and what conditions, qualifications, or restrictions. Now, a very desirable quality of such evidence is, that it should be in writing. We all know how liable mere verbal agreements are to be misrepresented by the mistake or villainy of the witnesses called in to establish them; so much so, indeed, that the legislature has declared, that in certain specified cases, which have been supposed peculiarly open to frauds of this description, no agreement, even though upon the most valuable consideration, shall be valid, unless reduced to writing; and the principle of this law has been generally approved, though objections have been made to some of its details. Yet where an agreement is stated to have been made upon a matter of bargain, we have much better means of judging both of its reality and honesty, than where it depends upon mere gratuitous promise. In the former case, we are not obliged to rely wholly on the testimony of witnesses; the value of the objects alleged to have been contracted for on either side, is capable of being ascertained, and the probability of the supposed contract having been made, may be estimated accordingly. But when we come to deal with gratuitous promises, we are entirely deprived of this guide; and if the situation of the parties be not such as to render it glaringly unlikely that any promise at all should have passed between them, we are left quite at the mercy of witnesses, both as to the reality and the terms of the gift which they come forward to prove. Thus far we believe Mr Miller would agree with us, as his reasoning on voluntary agreements is confined to such as are written. Assuming, then, that the law ought not to enforce a gratuitous promise unless it be in writing, the only question that remains is, how this writing ought to be authenticated ? The answer of the law of England is, by the party who is to be charged thereby, sealing and delivering it as his deed; though, as a farther security against fraud, his signature also is in many, and we think should be in all cases required, as it is in practice universally added to the seal. Now, our author proposes to abolish altogether the necessity of sealing, and to make signing in the presence of witnesses equivalent. We cannot see any good reason for this change. The act which is to authenticate an instrument must, in the first instance, be a matter of positive institution; but be it what it may, it acquires in process of time a degree of importance in the public mind, which makes every man feel that he must not do it negligently, and without due consideration of the contents of the writing to which it relates. Sealing has acquired this degree of importance in English eyes; we believe there is scarcely a peasant to be found who does not know that it is an act requiring considerable caution, and this generally received opinion of the serious consequence of this form is a sufficient reason against altering it. But supposing it to be altered, and signing in the presence of witnesses substituted; we have now a new mode of executing deeds, but the question will recur, What is to be the effect of a writing signed by the party without that formality ? We have now got back again to a vo luntary agreement without consideration, evidenced, indeed, by writing, but that writing not formally executed; and we have no difficulty in saying that such an agreement ought not to be enforced. The formality either of executing a deed according to the present practice, or signing a writing before witnesses, according to Mr Miller's proposal, is a matter that may be got through at any time, with quite as much despatch as can be seriously thought necessary to the making a voluntary gift of a man's property; and that being so, there is no conceivable reason why whoever makes a voluntary promise, should not do so in the manner which the law declares shall alone make it valid, except that he has not quite made up his mind upon the matter, and intends to keep the subject still in his own power; his refusal or delay to execute the formal act is, in fact, a sufficient notification of that intention, and ought to put the other party on his guard against acting on the faith of such an incomplete undertaking.
Mr Miller has, with much justice, reprobated the manner in which courts of equity have 65 overstepped their proper limits by “ depriving parties of legal rights, or relieving them against the “ effect of legal obligations.” (p. 284.) He supports his own opinion by the authority of Lord Hardwicke, Lord Rosslyn, Lord Alvanley, and Sir W. Grant, all of whom have deplored the introduction of such a principle of interference, while they felt themselves bound by prior decisions, to act in conformity to it. The instances noticed by our author are the extension of times, fixed by agreements for the performance of contracts or payment of money, the restraining the common law rights of tenants for life without impeachment of waste,--the aiding the defective execution of powers in some cases, and controlling their execution in others,-and the interfering with the legal rights of executors to the undisposed residue of their testator's estates, and of husbands to the personal property of their wives. In all these cases, the well meant efforts of courts of equity to do good have been productive of evil. In the cases of extension of time, it happens almost constantly, that the party who has the law on his side, suffers an inconvenience quite equal to the benefit given to his adversary.
“ Compassion and their own interest, almost always prompt suitors to exercise sufficient forbearance and indulgence to one another, and the less courts of equity interfere in private arrangements of this nature, the public interest will be the more effectually consulted. They seldom have it in their power to do more than shift the grievance, and generally end in leaving it upon the shoulders of the wrong party.” -p. 285.
In the other classes of cases, the doctrines maintained by courts of equity have introduced a degree of uncertainty as to the rights of parties, which is painful even to the Judges who have to decide upon them. If the law was wrong upon these points, Parlia
ment should have altered it; if any individual was dissatisfied with it as applicable to a particular case, he might, by express provision, have prevented its operation ; but the interference of courts of equity with a legal right, acquired without fraud on the one hand, or the intervention of accident or mistake on the other, was a direct violation of the limits of their own power, and an assumption of that which belonged to the Legislature. For the office of those courts is not to make law, or to relieve individuals from hardships inherent in the law itself, but merely to compel men to act up to the spirit of the law, and to prevent them from converting it into a cloak or an engine of injustice, where the particular circumstances of their cases give them an opportunity of violating its intent, without transgressing the letter. We do not, however, mean to charge courts of equity with this assumption as voluntary. They were, no doubt, betrayed into it by little and little; and the changes which their decrees tended to introduce in the law, were at first scarcely perceptible. So much the worse, however, was it for the law. If the equity Judges had felt that they were legislating, they would have stopped short at once; or, if they had still dared to go on, they would have legislated better, and not have destroyed the old law, which had at least the merit of being clear, well defined, and easy to be understood, for the purpose of substituting in its place a system so irregular and anomalous as the present. The evasion of statutes passed for the quieting of titles and prevention of suits, is an error of the same description, and one into which courts of law, as well as of equity, have fallen. The statute of limitations is a striking instance. The courts have so pared down the effect of its provisions for barring actions on stale demands, first by holding that the statute does not extinguish, but only suspends the demand, which is capable of being revived by a subsequent acknowledgment, and then by discovering such an acknowledgement in language, which, to any common apprehension, would convey quite an opposite meaning, that no man can now rely upon the statute for that protection which it was designed to afford.
In his Second chapter, Mr Miller proposes the amendment of the law by consolidating, declaratory, and remedial acts of Parliament; acts of the two first descriptions being required to remove the uncertainty in which the law upon various subjects is now involved, owing to the multifarious and contradictory nature of the various authorities from which it is to be collected; of the third, to remedy acknowledged imperfections in the present system. To these, he adds, acts for the simplification of The law
of real property. Of the necessity of consolidating and declaratory acts, the Legislature is now pretty well convinced, and the labour which some of its leading members have bestowed, and are bestowing upon the subject, entitles them to the highest praise. There are a sufficient number of points in which all would agree that our present law is defective, to furnish them with some employment also in the preparation of remedial laws; and we think, several of our author's suggestions on this head deserving of consideration. For instance, that when the merits of the case require that one of the parties to a suit should pay the full costs of the other, the sum to be paid should cover every charge which the party receiving it has reasonably incurred, which is notoriously far from being the case at present; that the King, or in other words, the public, should pay the costs of revenue proceedings, where the defendant succeeds (and, we suppose, receive them where the crown succeeds); and that the courts of either member of the United Kingdom should be enabled, in civil cases, as they are now in criminal, to require the testimony of witnesses resident within the boundary of any other member. Mr Miller thinks this last principle might be extended by mutual consent, and under proper regulations, to the courts even of foreign states with which we are in amity : But we cannot go quite so far as this, even in pursuit of justice: we tremble at the thought of a Russian Subpæna.
Our author recommends that the law of real property should be simplified by the enfranchisement of copyholds—the abolition of seisin, and substitution of registration-legislative enactments respecting the transmission of real property by operation of law, or the will of the party-amendment of the means by which real property may be charged, for the purpose of raising money, or making provisions for wives and children, &c., and (what would be the natural result of the other improvements) greater brevity and perspicuity in conveyances. On the first head, we shall content ourselves with expressing our concurrence in the opinions contained in the following extracts :
“ It is not necessary to enter into any detail of the peculiarities by which that species of property (copyhold) is distinguished, the fines and forfeitures to which it is subject, nor the inconsistencies and absurdities to which the continuance of it has given occasion. ...... As far as the pecuniary interest of landholders is concerned, the enfranchisement of copyholds would be a decidedly beneficial measure. . ....... To lords, it would in every instance bring an accession of fortune, and to copyholders great and grateful relief. They would be for ever freed from the endless interference, attendances, and exactions to which they are now obliged to submit, and which, under the mild