Virginia advocate. [volume] (Charlottesville, Va.) 1827-1860, 1828-07-19

tice founded on clear understanding OF its fun
damcnta principle be no more vague and inde-
terminate than those which may be developed by
special plea
A traverse Of the declaration being course
which actions very frequently take, there has been
appropriated thereto in most actions, peculiar
form of expires sion. Thus, in an action on a bond
the technical language for signiiyng acceptance
of the circumstances profercd in the declaration
is non est filctum on a trespass, not guilty; &c
These forms of expressions themselves, are also
dcnominated the general issue; another uniortu-
nate ambiguity which has conduced much to the
mischief that pleading has come to be considered
and treated as system, or rather incoherent
tumble, OF mere forms and barbarous technicali-
ties.
When more circumstances have been
avcrred on the one hand and denied ON the other
those circumstances are said to be in issue aud
the parties ut issue and the Cause is then matur-
ed for another proceeding, technically termed the
TRIAL. T..c IDEAS annexed to this word i'm its
popular acccptation, arc exceedingly erroneous
The trial is commonly supposed to be proceed
ing for cnquring generally into the merits of the
case out OF which It arises whereas its object is
far more restricted and administering solely TO
determine the existence noH-erstenec Jf the facts
IN issue: Were its object what is generally imag-
lncd the trial BIZ JuRY-i.e. by body of twelve
men taken ndscri-ninatcly froma the re spec
table membersof the conmunity-so far from being
as it is, worthy object of tho attachment of the
most enlightened phlanthropists = would be one
OF the most monstrous absurdities ever conceived
ny man Besides the insuPportable waste OF en-
quiry under most expensive form, wherewith it
would be attended; it would be de:aais,rably in
consistent with system Of Laos; the detcrmin.
atoms OF cases 10y urics could not be in accordance
with any such system, because it is literally am
possible that juros should know the laws of even
the simplest code imaginable-that they should
possess an, accurate and precise ideas concerning
them. Ascneral use Of arbitration, regulated by
the co;niion sense of equity which prevails in ev-
cry civilized community, would be incomparably
preferable 10 system of laws attempted to be adj
minst':cd by ju:;es: for instead of the laws reg
'uating their decisions the attempt to understand
and apply them would only serve to obscure their
views Of that natural justice to which they would
at last, be obliged to rccus.
1t is very obvious that this proceeding, if ragu-
larry conducted, must necessarily coaduce in
high degree TO the Certain, expeditions ano, cheap
execution oil eaaw; and therefore, so far as the
HAWKS founded IN justice, to an equally desirable
ADMINISTRATION ofjustice. Ifa suit be oeH founded.
either the defendant will accept the subject of in
'Quiry first proposed by the complainant or he
VIII adopt the alternative course of proposing one
himself. If he does the former, the issue will be
Joined at once; if the latter it can be, at most
delayed few steps only, before it reaches either
some point proposed by the complainant which
the defendant cannot admit without abandoning
his whole case, and which, therefore, he will be
ooaSed to traverse; or some point proposed by
the defendant, which the complainant, aware that
inc HtGt OF tins or any other point must prove ia
vourabie to him. will traverse, and thus bring be-
fore Jury.
on the other hand IF the complaint be III found.
ed, the pleading will necessarily, sooner or later
reach some stage at which the defendant will have
II IN ms power either TO accept, compel his an
ta9onist to accept, the circumstance (if there be
but one or Of the circumstances {if there he
many) wherein that antagonists case is defective
Thus, IN either case, the inevitable result rs
I" orng some fact or facts into Issue, the truth in
relation to which is favourable to the pariy who
mas the law on his side. Up to the commence
gent OF the trial enquiry into the truth of this
act therefore, this party has in his favor precise
~ Inc same chances of truth against falsehood
winch he had at the beginning Of the suit: added
70 th's immense advantage, thatthc subject of en-
curry Isno longer an intricate mixture of matter
oi TACT and legal considerations but consists Of
matter Of fact simply
but this result requires that the proceedpc be
tcg"tarty cond.ctcd-thatth the system be thorosph
~ understood by those engaged in carrying il into
ou m other"ise, the intention of the cgisia-
LOT VIII be frustrated, and Injustice ensue0not
from ImPcrtection in the mode of procedure hat
from me 1nco,petency ofits ministers Suppose,
ioi instance, that the party who has the ripht side
OF case, docs, either through ignorance of the
Facts OF the particular case, (c) or ignorance of
,"o sencrat principles of the proceeding and the
n'canlhS OF technical terms, bring into issue some
TACT IN which his advcrsarys case is not deficient
OF example, IN an action on bond, in which
the zeal circumstances are--bond and yol,nto..,
'.fease; let it be supposed that the defendant ia
s'eao OIL admitting the bond and PLEADING the rc
tease, does. through ignorance Of the fact. Of the
Iase' or the meaning of the general issue non est
..saet"m'td make use of this plea, which is tho
1olh1 or bringing into question Ike e1ccufion ofths
on1'u AGAIN suppose the same case, with the die
terence that TIE release has been ,rtorJsS ,b.,
!he defendant pleads the release; and the plaintiff.
instead OF admitting it and pleading the darcss and
comPuision, traycrses the release. I'm both these
caSes' tho misplcading will be fatal to the party
"ho really has the law on his side he will have
uaversed fact, the negative of which is in con.
sequehco oil tbs traverse essential to his success
quo wnFh nevertheless is true and will probably
DC established. AT the trial. the question for The
u In Vtrt hpr, +