"With a view, then, to this object, we propose that in all actions, if the plaintiff or defendant happen to die after issue joined and before verdict, or after interlocutory judgment and before final judgment, the action shall not abate by reason thereof, (except as hereafter mentioned,) if such action might have been originally maintained by or against the executors or administrators of the party dying; but the executors or administrators of the plaintiff, may within twelve months from the proving of the will of the defendant or grant of administration of his estate, sue out a scire facias against the defendant, his executors or administrators, to show cause why the suit should not proceed in the names of the parties between whom such scire facias is sued out; and upon the failure of the party to appear or to show sufficient cause aforesaid, the suit shall proceed accordingly; provided always, that if no scire facias be sued out within the periods above provided in the respective cases aforesaid, the suit shall be considered as abated at the end of such periods respectively. The case of the death occurring between verdict and final judgment not being affected by this provision, will of course remain upon its present footing.'

A

In Massachusetts a suit does not abate by the death of either party. The executor or administrator of the party deceased has the right to come into court and prosecute or defend the suit to final judgment; and if he does not voluntarily appear, the other party can, by having him served with a notification, either compel his appearance or obtain judgment against him. similar provision is made in the case of the death of an executor or administrator, to admit or compel the appearance of the new representative of the original testator or intestate as a party to the suit. The remedy in Massachusetts seems to us much more thorough and complete than that brought forward by the commissioners.

'The inconvenience of the present state of the law on the subject of misnomer,' is considered in the third report. As a remedy for this inconvenience it is proposed to abolish the plea of misnomer, and introduce some new regulations in its place. 'A mistake in the names of parties may occur either in the process or declaration, or both. When it occurs in the process, and when it has not been cured by the defendant's appearance, it has been considered as ground for setting aside the proceed

ings; and, in some cases, it entitles the defendant to maintain an action for false imprisonment. When it occurs in the declaration, the defendant is entitled, upon making affidavit of the fact, to plead it in abatement. The effect of this plea is, that if the plaintiff admits the misnomer, either the proceedings must be quashed, or the expense and delay of an amendment must be incurred; while, on the other hand, if he thinks fit to take issue on the name, or to reply that the party is as well known by one denomination as the other, the verdict, if given in favor of the defendant, abates the suit, and throws its costs upon the plaintiff; and if given against the defendant, entitles the plaintiff to a peremptory judgment for the debt or damages, without any inquiry into the merits of the cause.

'We think it manifestly wrong to permit a formal issue to be thus joined upon a mere mistake of name, and to apply to it the expensive apparatus of a trial by jury, or to allow it under any form of proceeding to operate decisively on the cause. The injustice and inconvenience of such a course of practice are the greater, because the error is (generally speaking) one of the most probable occurrence, and most venial description; and this remark applies more particularly to the frequent case of a misnomer of one of the parties of a mercantile house, whose name is not expressed in the firm, or of a defendant sued as negociator of a mercantile instrument, whose person is unknown to the plaintiff, and who has used initials only in the signature of his christian name.'

• We propose that upon a Misnomer in the process, the defendant may appear (as he now may) in his right name, describing himself to have been sued by the wrong one; that where, in default of his appearance, the plaintiff appears for him, the plaintiff shall be at liberty to enter such appearance in the right name, and declare accordingly; and that the proceedings shall in no case be set aside for a mere misnomer in the process; that where the defendant has been arrested by a process in a wrong name, but the affidavit to hold to bail gives the name correctly, the bail bond, in whatever name given, shall be available against the defendant by that name, and no action shall lie for false imprisonment; that where the affidavit to hold to bail gives the name incorrectly, there shall be such remedy by action, and by application to have the bail bond cancelled,

as may now be given by law in such cases; and that where the action is founded on a bill of exchange or promissory note, signed, accepted, or endorsed by the defendant, the plaintiff shall be allowed in the affidavit to hold to bail, and in the process, to designate the defendant by such initial letters or abbreviations of his name or names, as he has himself used in such signature, acceptance, or endorsement.

'We also propose that a misnomer in the declaration shall be no ground for plea; but that for correction of the mistake the defendant shall be at liberty to make affidavit of the misnomer, and of his right name, and deliver such affidavit to the plaintiff within eight days after the delivery of the declaration, or the filing of the declaration and service of notice thereof. Upon this the plaintiff, without order or rule for the purpose, may deliver an amended declaration, or, if he think fit to dispute the name given in the affidavit, or to insist that the party was known as well by one name as the other, he may suffer the time for pleading to run out, and then sign judgment for want of plea; which defendant on affidavit may move for a rule nisi or take out a summons to set aside; and the Court or Judge will then determine the matter of fact upon affidavit.

'If the plaintiff deliver an amended declaration conformable to the notice, we propose that the costs incurred by the defendant in thus correcting the misnomer, shall, upon the general taxation of costs, be taxed against the plaintiff, whatever be the event of the cause; but in bailable cases the bail shall not be discharged by such amendment of the declaration; and that in all cases the defendant shall have the same time to plead in abatement, or in bar, after delivery of the amended declaration, as remained at the time of delivering the affidavit.

'We propose, too, that where the action is founded on a bill of exchange or promissory note, signed, accepted, or endorsed by the defendant, the plaintiff shall be at liberty to designate the defendant in the declaration by such initial letters or abbreviations of his name or names as he himself used in such signature, acceptance, or endorsement, without being liable to demurrer, or to such notice of misnomer as above suggested.'

The following remarks upon the subject of Set-off deserve attention :

"The plea and notice of Set-off are given by statutes 2 Geo.

2, c. 22, and 8 Geo. 2, c. 24; and they are in the nature of a cross demand. They are confined to debts, properly so called, and cannot be used where the plaintiff's or defendant's demand is for uncertain damages. We have considered whether it would be advantageous to extend the right of set-off so as to make it applicable to all cases, whether the demands arise by reason of contracts or wrongs, and whether they be certain or uncertain in amount. The proposition, that all matters in dispute between parties, of whatever nature, should be settled at once in one action, seems very plausible; and it frequently occurs upon arbitrations, that a general inquiry into all matters in dispute, is entered into and conducted very beneficially to the parties. But we are persuaded that much confusion would arise from attempting to introduce such an extension of the plea of set-off, and that it is expedient to confine that plea strictly as now, to actions for debts, and to the setting off of debts.

The abolition of the general issue, recommended by us, will, of course, carry with it that of the notice of set-off; and, indeed, whether that plea be abolished or retained, we recommend that a set-off should always be pleaded, because that course of proceeding enables the plaintiff to make his proper reply to the set-off, on the record, and tends to bring the matters in dispute to precise issues. We recommend further, that the defendant should be at liberty to add to his particulars of set-off, a notice, that he means to insist that his set-off exceeds the plaintiff's demand, and that he claims to recover the surplus. If such notice be given, we propose, that the jury should find whether the set-off does exceed the plaintiff's demand or not; and if it does, how much, and that the defendant should be entitled to judgment and execution for the excess. This provision will sometimes make one action serve the purposes of two.'

We might easily multiply extracts from the Reports. But those which we have given are sufficient to show how extensive and thorough the examination of the commissioners has been, in regard to the subjects of their inquiries.

In most, if not all of our States, the law upon pleading and practice requires a thorough revision. Much of the expense and delay to which suitors in our courts are exposed, may be fairly ascribed to defects in the rules upon these subjects.

1832.]

Mr. Webster's Forensic Arguments.

99

These evils are felt by suitors, but their precise causes can only be ascertained by persons thoroughly versed in the science and practice of law. The remedies attempted by legislation in this country have been too often guided by no scientific principles, and in consequence were either mere appliances for casual and unfrequent mischiefs, or violent and indiscriminate measures for destroying all regulations in any way connected with the subject of revision. We trust that the example of England will not be lost upon our country; and that whenever any important alteration in the law of pleading and practice is attempted in any of our States, the subject will, in the first instance, be referred to persons whose learning, skill, and experience will enable them to understand the real defects of the existing system, and estimate the probable consequences of any changes which they may propose.

ART. X.-MR. WEBSTER'S FORENSIC ARGUMENTS.

Speeches and Forensic Arguments, by DANIEL WEBSTER. Boston. Perkins & Marvin and Gray & Bowen.

MEN not only aspire to fame themselves, and wish that posterity, as well as their cotemporaries should know of their existence, but are led by the same sentiment, so deeply pervading our nature, to desire that the name and reputation of any one who illumines his age, should be distinguished by some visible memorial that may remain hereafter. We regret that such a one should pass away with his times, and that his words which agitated multitudes and determined the course of events of mighty influence, should be blown away by the winds with the breath in which they were uttered We wish to read, and that posterity should read, the spell by which men were enchanted. As the animated features are imperishably fixed upon the canvass, so we would have the thoughts that breathe and words that burn,' of eloquence, in which the lineaments of the mind are characterized in living freshness, preserved and transmitted Of those whose reign is in the minds of men; the intellectual monumentum are perennius of their own thoughts, feelings, opinions, and principles, expressed in their own words, is the most appropriate memorial,