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

bio Of failure from tho former of these causes. at
every possible stage OF the proceeding but chief
y, as may be imagined, in the incipient one the
General issue having been the principal stumbling
piock oil the unit attorney. There have been
many aud many, whose ideas on the subject of ev-
cry part OF the judicaturc, were extremely vague
and erroneous who have even never learned any
better than to consider the trial as proceeding
for enquiring into the general merits ef causes !;
who view pleading rs merely formal process pre-
Paratcry TO tins proceeding and the general issac
as mere form for bringing the matter generally
bclo,e a jury. The error into which these would
most frequently fal--tor, independently of the
temptation presented by the word general, to cut
. tho matter short by presenting it generally to a
jury, occurs at the first step the defendant has
to take-is that Of pleading the general issue un-
der circumstances to which it is utterly inappro-
pirate: and this error, with the assistance of a
little corresponding ignorance on the part of the
Judge or the Legislator, leads TO the mischief of
crtend::,Y the general issue.
AS to the beneficial operation ofthis system re-
qures that it should be understood by the aftor-
neg employed in conducting the pleadings; 50
does its preservation require thu. It be understood
ny tho Judge who presdes at the trial, and by
iheLegslator at the mercy Of whose will, this and
every thing else that is valuable in the judicial
constitution, lies II is necessary that the Judge
o the lacts brought i.s issue and distinctly un-
derstand the objcctof the triafto be, not to en-
4u're into the general merits Of tho case, but to
detertnine on the existence or non-existcnce OF
those particular facts 1t is necessary that the le
gsiator should sofar comprehend the system as to
understand, that the mischiefs arising from mis-
pleadng. or sfmAi-ioqaia rs We learn from Sir Ma
thew Hale that It used to be called, do not at all
belong to AZ, but proceed solely from tho incaps-
tho
winch causes the attorney to misplead, and thas
produce an imPcrtinent issue, may lead him, at
the trial, to propose for the consideration of the
Jury some Tact, very important, perhaps, to the
merits of the case, but having no proper relation
20 the issue which it is their business and their
sole business to determine. For INSTANCES, sup
pose am action bond that has really been paid;
aud that the defendant pleads, instead Of payment
the general issue. When the trial comes on, he
may attempt to introduce the fact of payment;
the only business for the jury is to deter
mine on the execution of the bond, &c.
Under such circumstances, the Judge, if he un-
derstands his oH:"a; will explain to the jury the
true object for which they are empannclled, and
hnld to the attorney, language NE the following
his factis altogether impairment aid l:Hadmi,-
sbie Although if your client really has paid the
bond 1t will be hard that he should be compelled
TO do so a second time, this is nevertheless hard
snip consequent upon system, which, in itself. is
pc iectly just and beneficial, and which cannot
De iniringed without public dctriment to which
any case oil individual loss is altogether incom-
mensurate In paying twice, your client will on
~ pay the penalty which usually attends the en-
ployment OF an agent utterly incompetent to the +
hco assigned him." But it very frequently hap
pens that the Judge knows nearly little Of the
matter as the attorney. Being one whose ideas
OF Justice are Of that limited kind which do not
extend beyond individual cases; and in whose
mind tie ld,o consists Of confused tumble Of pre-
cedent and discretion it strikes him as intolera-
oiy august that man should be compelled to pay
twicc Tor the same debt and being unjust COM
mon sense requires that it should be avoided and
that the fact of payment be admitted He there
iore rules accordingly; and, from this moment,
the general issue becomes e1tendea. That is to
say, the meaning Of the technical expression so
called, becomes enlarged and in future, its use
ny 'pleader leaves his meaning uncertain: to
pursue the above example. no can tell until
the trial commences, whether he means to contest
the execution of the bond, or to attempt to cstab
lish Its payment.
But suPposing the attorney to bc/so unfortunate
us not to find his counterpart ia the Judge he
STILL has chance that worthy legislator, fir
ed with generous zeal against every remnant OF
the institutions of the dark ages and possessed of
as many clear ideas concerning pleading the
babe unborn is regarding the solar system, will
bring in bill, recitins that man has actually
been prevented from proving Before a jury that he
had paid debt, and prohibiting any such absurd
decision toT the future
Sach are the nature and causes Of the extension
OF the eeneralissme. (e.) Among its consequent
ccs, are, the perpetual alterations Of the tech meal
terms Of law-the substitution of darkness con
fusion and doubt, for light, order and certainty
the encouragement Of ignorance in the profession
and the conversion of the jury TRIAL, from a
perfectly simple part of beautiful and consistent
system Of judicaturc. into complicated tumble
all OF It's parts producing results which in spite OF
the reverence whcreoftlis mode o. trial is in pos
session, cannot fail, under continuance Of the c.
WI, 20 bring 1t into general dscrcdit ana drive
thinking people into tho adoption OF arbitrations -
the judicature of savage man.
la) Ihio word has also other meanings
20 Ihs samo feniark applies to tho torn plea which
Is used, often unconscionyiy in some half dozen differ.
ent senses. The English Law presents a soa literally
oTising with rocks; and the mind that cmbarks on it.
must be porpetualy the alert under tho penalty of
certain wreck.
rl 49, IL =