Wisconsin herald. [volume] (Lancaster, Wis.) 1846-1849, 1848-07-15
Ear ne Igr.consin Herald.
Alterations in the Law.


After the first day of the present month
the common law forms = =. .-.'ssding and prac-
tee in the State of Nfy York are to be ex-
lied from their courts, andss system of equi-
ty pleading and practice substituted. The
court of Chancery itself is dissolved; but its
forms and spirit have fallen like Eiijah's
mantle ON the tribunals of the new Const-
tuition. II is manifest that an injured party
can only address court of justice in two
forms. He must either state his grievance
according to a common law declaration,
many Of the allesstisi.s of which are alto
ecther fictitious, or by billin ci,ancery which
sets out the injury according to the facts
The latter has this advantage, it is an in
teligible history of the plaintiffs cause of
action, but it is often verbose and tedious in
its details, and leaves the plaintiff in doubt
as 10 what allegations require proof, and
what statements are immaterial. Equity
pleadings lack the exactness and point Of
the common law forms. In an action of
troyer for instance, the gist Of the com
plant is, that the defendant has taken the
plaintiffs property, and applied it to his
own use. 1t is unnecessary to state by
what means the defendant got possession of
the property; in bin in equity this would
be stated circumstantially according to the
facts. A common law declaration says 10
all such cases that the defendant found the
plaintiffs property. This in nineteen cases
out of twenty would be false; but state
nents of immaterial circumstances in the
common law forms, If made at all, are fic-
titious. Thus in a common law declartion
the few material allegations are briefly
stated--they stand forth with prominence,
and the very fctions with which they are
surrounded, point out what facts are assem-
tial to be proven. An that the new code re-
quires of the plaintiff, is, to state his cause
so as a man of common understanding may
comprehend it. The use of a statement of
a cause of action, is, TO give the defendant
notice of What he has to answer. As the hui
man understanding is the most indefinite Of
all standards, it will require long course of
decisions to settle what is an ineligible
statement of a wrong. In giving this lati-
tude to pleadings, it was probably the inten-
ton of the revisers to abolish all forms. But
in, IF thox ha1 :
nounced their scheme, than Mr.. Towns
bend advertises s'new forms of pleading,
adopted TO the new code" The rcvisers
have become commentators, and
after having successfully brushed away all
the cob webs Of the common law, there is
danger of themselves being caught in the
meshes of their own system. Justinian di-
gested the forms and law of the Roman
Empire, & prohibited by decree, all persons
from writing comments on what was. self
evident, and the next year he wrote COM
himself to solve doubts which must
necessarily arise in the application of a pre-
statement of abstract principles To
the complexity of human transactions. If
both parties came into court of justice de-
sirous of receiving & doing equity, it would
be easy 70 adopt Q, system of law TO suit
their convenience. At least one party at
tempts to elude justice, and viii take all adj
vantages of any errors or omissions of his
opponent. IL court has no prescribed
forms, it is despotism; if il proceeds ac-
cording to such forms, the wrong door may
take advantage of them. Wisconsin may
well wait to SEQ the result before she goes
the length of the New York reformers.
J. L. Nj.