Front Page Titles (by Subject) SECTION XIV.: EXAMINATION OF SOLICITORS. - The Works of Jeremy Bentham, vol. 3
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SECTION XIV.: EXAMINATION OF SOLICITORS. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 3 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 3.
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EXAMINATION OF SOLICITORS.
Art. 1. If (as per Sections I. and X.) Dispatch-Court-praying petitions in sufficient number shall have been received,—before the opening of the Dispatch Court the Registrar will have received from the Secretary of State (as per Sect. I. Judge located, how) the several petitions by which cognizance has been given to the Dispatch Court of the several suits.
Art. 2. From these documents, the Registrar, under the order of the Judge, will have framed two lists:—the one, containing simply the names by which the several suits stand denominated and distinguished in the several Courts from which it is desired that they should be transferred: name of this list, the Suits’ name list:—the other, containing the several names of the several suits as above, but under the name of each such suit the names of the several other individuals who on either side are understood to be parties to that same suit, whether in quality of parties principal, or say interested parties, or, in one word, principals,—or in quality of parties auxiliary of fiduciary, or say, in one word, fiduciaries, or say (employing the name commonly in use) trustees.
Art. 3. By an intended benefitee, understand a person by whom it is intended by the law in question that the benefit of the right in question shall be enjoyed. By a fiduciary, or say a trustee, understand a person by whom it is intended by the law in question that his acts in relation to the subject-matter in question shall be exercised for the intended benefitee in question.
Art. 4. Of the several parties bearing to each other respectively the relation of intended benefitees, or say principals and fiduciaries, or say trustees, examples are the following:—
Principals, or say intended Benefitees:
Fiduciaries, or say Trustees:
Art. 5. Note, that by a man’s being an intended benefitee, or say by his having an interest in his own right, in the subject-matter in question, he will not with the less propriety be rendered capable of being, with relation to others, interested in their own right, designated by the denomination of a trustee of that same subject-matter: in the words commonly in use, he may be possessed of it, or otherwise interested in it, in trust for himself and those others conjointly.
Art. 6. If in sufficient number Dispatch-Court-praying petitions, by which, as above, the order of cognizance will have been determined, have not been received, the suits to be transferred, together with the order in which cognizance is to be taken of them, will have been determined; namely, by lot, as per Section X. Suits’ comparative suitableness, Art. 16.*
Art. 7. So soon as the term is elapsed which has been appointed for the sending in to the Dispatch Court information of the existence of the extra-long-standing suits (as per Sect. X. art. 14,) the Dispatch Court Judge will by his appropriate mandates begin to convene the town solicitors of the parties in the several suits, for the purpose of taking their examinations. Name of the sort of mandate, an Attendance-commanding mandate: Form, as per Schedule No. XXVIII.
Art. 8. The number convened for examination on the first day will be the number which he expects to be able to examine in the course of that day’s sitting: and from the experience afforded by that first day he will be the better enabled to deduce the numbers to be convened for succeeding days.
Art. 9. Purposes of such examination, these:—
i. Ascertaining who the several parties to the several suits are; what their names; and how they are circumstanced, in respect of actual residence and thence forthcomingness, and in other relevant respects,—for the purpose of the commencement of the suit by the initiatory examination of the parties.
ii. Ascertaining and making a list of the past proceedings in the Equity Court, that by its being seen where they end, it may be seen where the summary procedure in the Dispatch Court, commencing with the initiatory examination of the parties, will have to begin:—in which said past proceedings will be included the whole of the evidence elicited down to that time, none but what is documentary, that is to say in writing, being receivable in an Equity Court.
iii. Affording data for calculations respecting the quantities of time, absolute and comparative, at the end of which each suit is likely to have received its termination, and of the quantities of the Judge’s time which it is likely to occupy.
Art. 10. For the Dispatch Court Judge, subjects of consideration, which preparatorily to the examination of the first-examined set of solicitors, and therefore to the examination of the parties (as per Section XV. Initiatory Examination of Parties), are these which follow, distinguishable into two lists:—
i. List the first:—Past state of things and events, the scene of which lies in the Equity Court.
ii. List the second:—Future contingent states of things and events, the scene of which lies in the Dispatch Court.
Art. 11. Note, that though in regard to the several suits subsequent to the first, these particulars, most or at least many of them, may not have to be put to use till those same suits come respectively to be called on, yet from the amplitude given to the list, the following are the advantages that may be derivable:—
i. To individuals examined at the first sitting, time may be saved—namely, the time which would otherwise have to be occupied by their respective examinations, preparatory to the calling on of the suits for the purpose of which they come respectively to be concerned.
ii. In some instances, the accommodation of the suit may be the result of the disclosures thus made in relation to it.
Art. 12.—I. List the first:—Past state of things and events, the scene of which lies in the Equity Court. Particulars to be comprised therein, these:—
i. Names of the several parties in the suit:—names at full length;—christian (or in case of non-christian, the names equivalent to them), and surnames.
ii. In regard to each, mention whether it is in his or her own right that he or she is party, or in the right of another or of others, mentioning whom; that is to say, whether principal or trustee, as per art. 4.
iii. Their respective ages; so far as to show whether they are of full age or under age.
iv. The condition, in so far as known, of each one, in respect of marriage: whether bachelor, married man, or widower; spinster, married woman, or widow.
v. The occupation, as far as known, of each one, or other condition in respect of rank and situation in life: for example, in the male sex, Member of either House of Parliament; Member of the Official Establishment, mentioning the office held by him; person living, without profit-seeking occupation, upon his fortune:—if a married woman, the like in regard to her husband:—if a single woman, without profit-seeking occupation, yet without fortune of her own, the fortune of the relative or relatives from whom she derives her means of subsistence may be considered and spoken of as being her fortune, the question not being in any case to be elicited.
vi. The residence, as far as known, of each one: the description given of it, such that a LETTER may be sure of reaching him or her by the post.
vii. Stage at which the suit has arrived; as indicated by the several operations that have been performed, and written instruments that have been issued out of the offices of the Court in the course of it.
viii. Stage of the suit; as indicated by the names of the several offices of the Court in which business as above (No. 7) has been done in the course of it.
ix. In regard to examination of witnesses (including parties examined in the manner of witnesses,) if it is going on, day on which it commenced: if terminated, day on which it terminated.
x. So, in regard to the Master’s office.
xi. So, in regard to such others of the offices as this head of consideration is applicable to.
Art. 13. Applicable are these same subjects of consideration not only to the principal or original Bill, but to any accessary Bills, to which it may have happened to be filed in consequence of it, or for the purpose of it.
Art. 14. By the principal Bill, understand the Bill in and by which the demand made upon the Court for the judicial service in question, or say for the obtainment of the benefit sought by application to the Court, was first made.
Art. 15. Accessary Bills, capable of being filed in consequence of an original Bill, are these which follow:—namely, 1. Cross-Bill; 2. Supplemental Bill; 3. Bill of Reviver; 4. Bill of Review.
Art. 16. Accessary Bill, capable of being filed for the purpose of the suit, during the same, or antecedently thereto, is a Bill filed for the single purpose of the examination of witnesses in perpetuam rei memoriam: the original Bill being eventual only, and, it may happen, never filed: as it may happen, in particular, in the case where it is only in contemplation of an original Bill not existing, that the said perpetua rei memoria Bill is filed.
Art. 17. By perusal of the several Petitions, together with the above-named list, the Judge will have been enabled to form a conception more or less correct and comprehensive, in relation to the subject-matter and the existing state of the suit in question, of the topics following: that is to say,—
i. The subject-matter of the demand preferred by the Equity suit: or in other words, the nature of the judicial service thereby demanded at the hands of the Judge.
ii. Ground or grounds of such demand.
iii. Refusal to comply with such demand, as declared by or deducible from the deportment of each several defendant: say, in case of his inaction, proposed defendant.
iv. Ground of such refusal, as declared by or inferred from such deportment.
v. Proceedings in behalf of the several parties on each side of the suit: proceedings—that is to say, operations performed, and instruments delivered in or issued.
Art. 18. The appropriate information obtainable from the documents in question being thus obtained, the next object of his consideration will be, in regard to each such suit, what further information conducive to the above end presents itself as obtainable by examination taken of solicitors employed in the several Equity suits.
Art. 18. Furnished by this examination will be information respecting operations likely to be eventually requisite, and for the purposes following:—
i. Ascertaining and settling what shall be the subject-matters of examination at the time of the initiatory examination of parties and witnesses, in the suit in question.
ii. In relation to things intrinsically valuable, as per Sect. VI. Judge’s Powers, art. 9, to determine what in consequence of such examination shall eventually be prehended.
iii. So, in relation to things relatively valuable; to wit, documents.
iv. In relation to such other persons, whose evidence may have need to be elicited, to determine in relation to which of them it may be proper to proceed by means of an attendance-requiring mandate, and which others, if any, by means of a response-requiring mandate.
v. So, in relation to what persons, if any, it may be necessary to proceed by a prehension-and-adduction-requiring mandate.
Art. 19. On the attendance of each such Solicitor, the Judge taking in hand a Petition belonging to the suit in which he is solicitor, will proceed to take his examination touching the matter of the articles therein contained; in such sort that to the information afforded by the party or parties, confirmation or amendment,—to wit, defalcation, addition, or substitution,—may be applied, as the case may require.
Art. 20. On this occasion, antecedently to his proceeding to the examination of any party to the suit, the Judge will either rest satisfied with the examination of one such solicitor, or proceed to the examination of others on the same day, or on a subsequent day, as the circumstances of the individual case in question may require.
Art. 21.—II. As to List the second. Future contingent states of things and events, the scene of which lies in the Dispatch Court, are the following:—
i. As to each suit, whether and in what instances, after the initiatory examination, intercourse between the Judge on the one part, and the parties and witnesses on the other part, is likely to be needful. For provision on this subject, see Section XVI. Appropriate Intercourse secured.
ii. So, whether and in what instances, and in what manner, for appropriate forthcomingness of things and persons, taking security is likely to be needful. See Section XVII. Mutual security for appropriate forthcomingness of things and persons.
iii. So, whether and in what instances, for the expense of evidence, without which justice cannot be done, money from a fund other than the property of the party in whose favour it would operate is likely to be needful. See Section XVIII. Evidence-procuring money, how provided.
iv. So, whether and in what instances, after the initiatory examination, the attendance of parties and that of witnesses in Court is likely to be needful. See Section XIX. Subsequential Evidence, how elicited.
Art. 22. Subject-matters for consideration with regard to costs, are these which follow:—
I. Costs of the proceedings in the Equity Court: namely—
i. Of the original Bill, and of the accessary Bill or Bills, if any;—distinguishing: between costs actually paid and costs incurred; distinguishing also the costs of each such Bill; as also the several parties on whom the burden of the costs has borne and bears.
ii. So, as to ulterior costs, were the suit to continue in the Equity Court; so far as an estimate can be made of them.
iii. Costs of any branch of the proceedings, which in the existing practice is wont to be in a particular degree expensive: for example, 1. Commission* to examine witnesses in England or abroad; 2. Sale† of an estate in land, or other subject-matters of real property; 3. Making out the title to a subject-matter of real property. As to this matter, see Section XXI. Equity Court costs, how disposed of.
II. Probable costs of the proceedings in the Dispatch Court. See Section XXII. Dispatch Court costs, how disposed of.
Art. 23. Execution, what and how it may have to be performed: to wit, in such manner as to give the most complete effect to the intentions which will have to be made reference, and require to be conformed to: intentions,—that is to say, those to which in the case of written, or say statute law, in and by the substantive branch, or say main body thereof, expression is actually given by the actual Legislature; and in the case of that same branch of the so called unwritten law, called also common law, is feigned to be, and spoken of as if it were the intention of the imagined Legislature, and thereby as constituting the rule of law. See Section XX. Execution, how performed.
Art. 24. Special subject-matters for the consideration of the Judge:—Of the suit in question, length of continuance, past and future probable: Of the causes of it, examples are the following:—
i. Essential: to wit, the complexity of the species of suit.
ii. Contingent and accidental: to wit, distance in respect of place, and thence in respect of time, in the case of witnesses and parties.
iii. Latentcy: that is to say, where it is known that this or that source of evidence is in existence, but not in what place it is.
Art. 25. Eventual retrotransference: namely, of the suit in question to the judicatory whence it will have been called into the Dispatch Court: and of such transference, whether any probability has place: and if yes, in what manner and at what time it may be requisite that such transfer be made. See Section XXIII. Eventual retrotransference.
[* ]See Note at beginning of Section X.—Ed.
[* ]Commission.] Not long ago, to the author of these pages, mention was made of an instance in which the expenses of a commission to examine witnesses, though the distance of the places at which the examination was taken was not greater than that between Paris and London, was upwards of £9,000.
[† ]Sale.] In one of the pamphlets that have been published of late years, an instance is mentioned, in which one single fee charged by the Master for the sale of one single estate was between £500 and £600: he contributing nothing to the proceeding but his fiat, as notified by his signature.