The Ottawa free trader. [volume] (Ottawa, Ill.) 1843-1916, 1848-02-11

cal; any mistake in which IN frequently IA
tai. Then there are demurrers general and
special, jonders in demurrer, replicalions,
reJonders, Snr-rejoinders, rebutters, sur-re-
buffers, new assignments, &c, SC. This
was all, anciently, upon the suppositon that
the plaintiff would have but one count in his
declaration. and that the defendant could
have (Or at least need not have) but one
plea, and that the matters in dispute would,
by the declaration. plea. and subsequent pro-
ceedings, be brought 10 single point of diff
ierence-called an iSsue-bcinG matter al
lodged on one side and denied on the other
| side. This issue. if it were of matter Of law,
was tried by the court, if of matter Of fact,
by a jury. This was fonnd not TO do well
and SecerGi pleas were allowed in England
by the 4th and 9Th statue of Ann, and have
for great number of years been allowed in
this State. We also allow, by statutory pro-
vision, several repications to each plea so
that the object Of having but one issue has
long since been lost sight Of. Ten or fifteen
pleas are not nncommon--col consisting of eve
ry imaginable thng-so that the plaintiff
knows no more Of what the defendant relies
on, than does the defendant of what the
plaintiff relies on. Many pleas are filed
in fact or bad in law. But as the plaintiff is
bound TO reply to the plea, specially, the de-
PENDANTS counsel frequently catches him in
a trap--if the trap will not catch in the Cir
cult Court, it may catch in the Supreme
Court. 1.-THE plaintiff takes issue when he
ought TO dernUr, or GemurS when he ought to
take Issue, or takes issue on an immatcrial
feet. he is caught in the trap. Then comes
the plaintiffs turn to cmbalrass the defend
ant, by replying many several matters to
each plea. With half dozen of counts, q
dozen of pleas, and two dozen replications,
and many demuwcrs, Submitted TO in the
Circuit Court, but kept for the Supreme
Court,) who can tell, in the confusion, how
the cause will terminate? Here is probably
fifteen or twenty issues, each Of which the
jury must find for plaintiff or defendant-or
part for each. Then comes hung iurv {:
for although the jury can agree for which
party to find generally, yet they cannot agree
which Of the issues TO find for plaintiff ard
which 10 find for defendant. Then comes n
writ Of error. as matter of course, (when-
ever yen can get a jury TO agrec,) and mas
much asyou cannot get two lawyers TO agree
on each OF the points decided, so neither can
yon get the two courts TO agree-and the
judgment is consequently reversed. The
success OF the party depends not on the good
ness or business OF his cause, but on the skill
of his lawyer. As Napoleon said in one Of
his Italian campaigns, Victory to The most
shflMr was once employed in connec-
ton with very able counsel to defend a cause
Of considerable amount and some ntiicacy.
Both the law and the facts were clearly
~ ltttkt D,,, IL.
selves. that there was no danger; for that
no Judgment could BE- obtained against our
client i'll the Circui; Court, which could no,
be reversed in the supreme Court. We ac-
cordiHgly always had verdic,S against us /:
but the Supreme Court never failed to re-
verse. Tie plaintiff, worn down by many
years Of litigation. at last agreed TO cOmpro-
mise and give up half his demand. So far.
therefore, from the matter in dispute being
simrlificd by having only one issue, as was
originally contemplated. the matter has be-
come inconceivally complicated-an the
whole object OF special pleading is lost sight
of.
"But The greatest hardship is that If the
defendant DC sued at lar, and he has Just
defence, but is what is termed an equitable
defence, lie is not allowed 10 make il at law
or in that suit-but must let Judgment 20
against him. and then bring a suit in Chan
Gerry 10 set aside that Judgment, or cnioin it.
rs Jeremy Bcntham said, '1hc Common
law Kicks the defendant into the ditch, and
thancery has to come and pull him OUT
But the defendant must also pay all the costs
of the sui, at law. But he must have law
yer 20 determine Watcher he can make his
defence at lGc; FOR if he tliis to make it at
IaW-ncg,sc;s. as it is callcd-when il might
thuS &c made, he is for ever excluded, both
at law and in equity, from making it. II
his counsel should undertake TO defend him
Mt law. when the court thought the defence
should be made in equity. he must pay all
the costs of the defence. But it not mnlre-
qurnty happens that the Circuit Court de-
cidcS tina, his defence may be made at law.
and he makes it accordingly; and the SUI
prcme Court holds the contrary. reverscs
his Judgment, and compelS him to pay the
costs OF both courts. But the Circuit Court
sometimes decides that his defence cannot
be made at law. aud drives him out Of court.
and renders Judgment against him. ethen
brings his suit in equity TO set aside or en-
join the Judgment n, law, aud gets judgment
in that court-called decree. The oppo-
site party takes his appeal TO the Supreme
Court. which rcversts the decree. on the
ground that his defence was ut law, and not
in equity. Now he is for ever precluded
from making any defence, because he 'ncq-
iccicd to make his defence at law. although
the Circuit Court held that it could not and
should not be made at law. IN such cases
Uor have known them occur,) the courts
hold that he ought not to have submitted TO
the decision of the Circuit Court, whenitde-
cidcd that he could not defend himself at
law. out have taken a wri, of error-rcvcrs.
cd the Circuit Cortland then proceeded
with his defence at law ~
What then is the remedy for all this hard
ship? Delay, expense, vexation, and cruel
injustice?
alt is for the defendan, when sued by Pc
tition. as before explained, for any matter
either in law or equity, or both, 10 file his an
swer stating his defence. whether that de-
fence be defence in law or equity, or both.
There would be no distinction between pleas;
there would be an answer aud nothing but
IN answer. There would be no form requi-
red-no nicely, no exceeding particularly,
no technicali,y. The defendant might in
his answer set up or claim an offset or Off
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