Selected quad for the lemma: judgement_n
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A60753
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Some abuses of the law detected in a seasonable discourse thereupon between a Parliament-man and a lawyer, now recomended to the consideration of the Parliament.
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1689
(1689)
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Wing S4465; ESTC R25773
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4,268
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5
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SOME Abuses of the Law Detected In a Seasonable DISCOURSE Thereupon Between a Parliament-Man and a Lawyer Now Recomended to the Consideration of the PARLIAMENT SIR Lawyer I Am glad I have met with you for I long to have some serious discourse with you I understand that some hot-headed people that never think themselves well but when they are Reforming forsooth have a Months mind to be Reforming the Law too Member Why truly Sir since the discourse has been on foot I have taken some Pains to inspect the Law and I find a great many things in it that serve only to perplex Causes and are of no other use in the World Now truly I am for paring off all this and many other things there are that need abundance of Redress Law. Pray Sir let 's know what these things are for I think we have nothing that is superfluous Mem. Why I my self had an occasion to Outlaw a Fugitive fellow t'other day and before I could get one Writ to the purpose I was fain to have three or four that are wholy useless I think you call them Capias Alias and Plures and there must be fifteen days between the Date and Return of every one of these useless Writs besides the danger of having any error in them Another thing that is as impertinent is notwithstanding the use of almost all Original Writs is laid aside for now you do not Summon the Defendant but proceed to Capias and take Bail thereon Yet forsooth those Originals must be continued and the want of them or the disagreeing of them with the rest of the proceedings shall vitiate the whole Cause An industrious Tenant of mine t'other day that had got a fair Judgment by Confession for a Hundred Pounds had his Judgment Reversed and he is without remedy because a careless or a knavish Atturney filed no Original and yet these Originals are of no use in the World And I can tell you another thing that 's as strange not long since a Neighbour of mine and one of the Freeholders whom I represent had an occasion to bring two Actions the one of Trespass and the other of Debt and notwithstanding the merits of the Causes were fairly tryed and he had Verdicts in both and it cost him a great deal of Money and pains too for he neglected his other business and came to Town to attend it Yet for all this because in the Action of Trespass on the Record 't was Quod Cum in the Declaration the Judgment was set aside because the word Cum was too much and 't is as dangerous to omit it in other Actions And in the Action of Debt tho his Counsel tells him there 's not the least error in the Judgment the Defendant who has the longest purse has brought a Writ of Error which is granted of course which will stave it off three Terms more and truly I fear before that time is out the poor Fellow must run away I told these Stories t'other day to an Ingeniout Dutch-Man who was curious to be informed of our Laws and he was amazed to hear them he told me that in Holland in many Cases they could Arrest have a Tryal and Execution in two or three days time without any of these Incumbrances and I hope to see it so here too for what need is there I pray of your common useless imparlances as you call them only to protract Time enrich the Lawyer and begger the Clyent Law. Sir It has been thus these many Years and why should we think our selves wiser then our Ancestours besides Sir I perceive you are perfectly for destroying the Grandure and Dignity of the Law which I hope the Lawyers in the House and in spite of your Teeth we shall always have some there will be careful to preserve As to Originals they are a great Revenue to the Chancellour and the taking them away would Ruin the Cursiters almost that have all bought their places tho of right I confess they ought not and besides Originals were of great use formerly and I don't see why they should be laid aside Mem. Formerly all Men were obliged to keep Bows and Arrows but now they are useless and Guns are in request it would be Nonsence still to enjoyn people to have them least the Bow and Arrow Trade should be spoyl'd Now the new great Lights are in fashion there 's no need of Candles at the same doors too and as to your Antiquity if that were sufficient to justifie Error Popery with all its fopperies must have continued and the Heathen will never be converted at that rate and as to its being a Dignity to the Law I take it to be the greatest Indignity and 't is much like a Story I have heard of an old Dotard that would leave his Sword off but would wear his Scabbard for the Dignity of the thing Law. But I hope these are all your Objections Mem. No Sir I could cram a Volume with them had I time to recount them I have been seriously considering of Fines and Recoveries and truly I think that either no Entails or Remainders ought to be defeated by any way whatever or that all such Entails and Remainders as may be defeated by Fines or Recoveries should be wholy void and of none effect without such troublesome chargeable impertinent and dangerous Ceremonies for if you 'l allow them to be defeated why not without this charge and danger to the Clyent Not long since a Kinsman of mine that had purchased an Estate entailed had a Fine and Recovery passed for his security and he 's now like to loose it the Fine it s fear'd will be Reversed because there are not fifteen days between the Teste and Return of the Writ of Covenant as to the Recovery either the Writ of Entry or 〈◊〉 is lost all which Writs are wholy useless in themselves and further as to the Recovery in a feign'd Judgment between the Demandant Tenant and John Wheeler there is a fatal mistake in the sham Story forsooth now is it not a deplorable thing that a Man should loose an Estate on these Accounts that he has honestly paid for Not but that I am for publick Registers in their room for all Deeds whatever that affect Inheritance to prevent fraud Law. Surely you think your self wiser then all that went before you you are for turning the World upside down this would impoverish one quarter of the Families that are supported by the Law and pray remember you are breeding your own Son up to it too the King would loose part of his Revenue if the Alienations by Fines and Recoveries should be destroyed and a Thousand other mischiefs would happen What would you have the Law as plain that every Cobler should understand it you talk thus Sir because you don't apprehend the Nature of these things Mem. Truly there is a mystery of Iniquity in it for my part I think the Law that concerns every body ought to be as
easie as possible as to my Son I had rather he got a little honestly then a great deal by oppression which never wears well the King you see by his Renouncing Chimney-Money is not fond of Taxes that oppress the People and I am sure Chimney-Money has not ruined more Families then this hath done and may do and as to your other Argument I have hear'd a Soldier use the same against Disbanding an Army when all trouble was over and there was no further occasion of them Why say's he several Officers and Soldiers have no other Lively-hood and if you Disband us we must either Beg Rob or Starve and yet I think 't would be a madness for any Nation to continue them to the oppression of all for fear they should reduce some particular Men to their Shifts Another horrid oppression is this I have known a Countrey-Man bring an Action but for Ten Pounds and I have seen an Atturnies Bill of Fifteen Pounds for the getting it and if he endeavours any redress against this Knave the Remedy is worse than the Desease Law. Truly I have thought of that with shame and I can think but of this one remedy for 't that is if any Atturney should make an oppressive Bill and it shall be found and declared to be so before a Judg that such Atturnies shall forfeit all that is due to him on that Bill and such Bill certified by a Judge or Prothonotor to be extortive shall be an absolute acquittance and discharge of the sum total Volenti non fit injuria this will be a speedy way of redress and after this t' will be a hard matter to perswade an Atturney to make a Roguish Bill Mem. Truly I believe you have hit the Mark set a Thief to catch a Thief as the saying is but another great oppression I have seen in the Law is the dangerous and useless Niceties in Pleadings and I think the late Parliaments have done very well in most of their Acts about penalties to order the general Issue to be Pleaded and that the special matter be given in evidence as you generally do in feigned Issues directed out of Chancery and in all Ejectments which 〈◊〉 of as great moment as any Action whatsoever and why may not this be as well done in all Cases I 'le warrant Thousands of Judgments after fair Tryal and Verdicts have been set aside meerly on this account and I don't see the advantage of the nice Pleadings to any but the Lawyers Law. Why if you should strip us at this rate you would leave us nothing Mem. Nothing that 's dangerous chargable and impertinent but all that 's really requisite Another thing is this I think it a very hard case that all Law like the Ladies Cloaths must come from London forsooth all the Records must be made up and kept here and Writs must be sent from hence only even for us that live at the remotest Parts why may not we make up and keep our Records in the Countrey that they relate to and have our process upon the spot without all this trouble for 't Law. Pray Sir no more on 't you have distracted me already Mem. There is but one thing more and then I have done with you for the present and that 's this the Law of late is Swel'd to that bulk and there are so many Books on 't and such variety of opinions in them that there is not one disputable point but a crafty Lawyer will Cite five or six Cases to justifie the affirmative and negative too now 't is impossible we should be at any certainty in our properties till this be remedied And therefore I intend to move the House that five or six of the ablest and most publick spirited Lawyers if there are so many may be appointed and paid well for their pains to determine what Books are of Authority and what not and even of those Books that are of Authority to geld out all the opinions that are not Law and when they have thus determin'd what is Law and what is not we 'll put a sacred stamp on 't by Act of Parliament that this only shall be taken for Law for the future and then and not till then the Student will find some pleasure in his now perplex'd Studies and we shall find some certainty in the Law which is now a meer Lottery and the Judges themselves often can not tell what rule to go by and I le undertake Men had better turn Cross and Pile between themselves which way the Cause shall go than imbark in a Suite as uncertain Law. But I hope the Parliament will be Dissolved before this comes to pass in the mean time I 'll set all the Lawyers in Town to expose you and ridicule the Project and you know that 's their Master-Piece so Farewell for this bout Licensed James Fraser London Printed by Andrew Sowle at the Sign of the Crooked-Billet in Holloway-Lane in Shoreditch And at the Three Kyes in Nags-Head-Court in Grace-Church-Street