The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-01-13

Chief Justiee Edm0nd's Opinion or the Code.
IN te case Of Dol,.er Potter vs Gibson, which was
motion IN syees term to strike out certain portions
lowing opinion OF the Code =
Among the many questions Of doubt aud dificulty
which have arisen nnder the de-and those have
been very pumerous which flow from the imper.
feet and insrtifcia of the language in which it is
expressed-there which has given rise to
az much diversity Of opSnion that in regard 20
pleading The Code begins by protesting TO abolish
all forms Of pleadings heretofore existing" Sec I4O
The first question that occurs is, what does this
mean" sbolishing the forms OF peating,n Not
surely that the words heretofore used IN any given
, U a. are as hS 2,
the power OF the Legislature mot that the combi-
nation OF those words in the fm s1d sentences
should never again be made by any one ior that was
scarcely less attainable but simply AS ar ss l can
understand It, that parties to suit should not bs
obliged to those forms, for they where
prohibited from using them. And es, before the
Code, no party was obliged to use the forms
then exstirg 1T would seem to follow that the abo
tion OF the iormf in reality, amounted to nothing
The Code hoSever, did not carry the abolition far
evenas at frat bush 1t seemed to- for it abolished the
forms only so far they might be inconsistent with
that act and modified them prescribed by the act
The principles OF pleading are left untouched, and,
except form naught eise done than to modify
also the ruee by which the suciency Of pleading Is
to be determined In all questions then to plead
ing must bear In mind that the principles of plead
ing are untouched and that the forms affected
only where they inconsistent with positive
enactment OF the Code One principle, which lay at
the found dation Of our syssem Of pleading the
venerable for its agewas that IL the legal effect
OF facts and not the facts themselves, which Ypye to
be pleaded. The pleader did not set out all cir
cunstano.s by which he expected to estal his
claim all his probative facts, they have ns 8apt-
was properly deducibe from them. For instance, .
man lent his horse to who retuset 20 return him
on c.mand Ii the owner sought TO recoyer him back
specifically in ropleviD, he would plead merely that
the borrower wron gully detained hts horse, fbe
sought to recover damage In trover, he would plead
that he lost his the had found him.
and appropriated him to his use; and IL he
tought TO the value Of the horse In afsumpst
he would plead that he had sold and delivered him
30, in action against an epdorser of promssory
note, who had waived protest. The pleader would not
set out the waiver but he would plead protest for
such the legal effect of the waiver. 30, ass
sale and delivery OF goods-even where there was
express promise topsy Tor them promise was always
pleaded for that the foundation OF the action
and the legal of tho fact of eals and the
sale and delivery pleaded merely the oonsde
ration OF the promise sotoo where man did act BY
another as his agent the act was always pleaded rs
the act Of the principal himse-or such the legal
effect OF what was actually done This rule Of plead
ing fortunately still in force for without it, 1t would
often be dfcult TO form any issue the reply
and when formed, IL would often be on some quite i'm
msterial point But it is very frequently ana indeed
almost generally di,reearded by the profession They
are misled by their familiarity with the old mode OF
p sdins in equity, and by the oath which the party
s required to make to his pleading They forget that
one quality ofsquity pleasing has been tirely abro
gated and that it is no longer TO be uied means
Of dire overy. When it so used it was not merely
mode CT setting a claim. but Q means OF OBJ
tanning evidence of particular facts to substantiate
that claim ant 1t necessarily dealt In probstive facts
well in the legal effect of them. That whole
thing however is changed, and pleading which IL the
statement ina logical and legal form OF the act-which
constitute the Ct action or deiences, has now
that alone its object and is governed by the rule
which always prevailed in equity we'll Us in Law,
where the peaoing is not used as means Of obtain
ing eyioence namely that the loyal effect of
not the facts themselves should be pleededthe grand
object beirg the creation OF certain and material
isfue upon seme important part OF the subject matter
OF dispute, when both pertes Join upon somewhst that
they refer to trial to make end OF the suit The
whole doetri6e IS hRpBily expressed BY entity Al
though any may be the gist Of party's and
the abatement OF IL is indispensable, t IL eti most
important principle of the law OF pleading, that
alleging the 1t is necessary TO state seh
stances ss merely tend to prove the truth uf 1t The
rety OF minute circumstances which constitute the
evidence of It, will suiace. The rule Edasd DO
diieult in It's application; but 1t bar been rightly
,nid that II Is so elssaentnry in Its ktaj asi
20 we'll Observed in practice, as not to have
become frequently the ,usject OF Illustration by
decided csses Il On Pl 22b The nature of tht oath
~hiah nnd~r the code the party IL required TO make
In regard TO his pleading does not s.cs this rule; but
the oath Is subordinate It. and necessarily qualified
by It, have bean thus parteular on this be.
cause of Tbs mary and grosing evils wiRch rrrtrg
nom the disregard Of the rule that ~ bscoI DK 90 pre-
vslont Pleaopgs stuffed fu OF all SORTS Of imma
tstial aysrments leading to great prolix!ty aud
rense, producing many suss n' tsad OF single oas,
giving rise 20 istu-s Wholly i'm steIis increasing the
chculties OF trial and ofen osnsipg suits 10 b. detes
ned upon points quite foreign to the real matter la
checked The case before Is an apt illustration Of
the disregard Of the role and rs consequences the
avernent that Maitland bought the goods for the de-
fencant true one then II was sale directly To the
pdnnt and ought to lave been 20 sverred tor such
the legal Eject OF the several fscts set out In the
complaint The plaintiff has however. chosen to set
cut teyera circumstance which tend to establish the
fact Of als 70 the diendsnt out they nowhere aver
such sse and the very foundation OF their action A.
wanting nnless spsl out one, TO save him from
being cs.ss a on his showing But this is not
all One Of their prob tive facts which they sege, Is
that the goods delivered alter the nraet q sale
to the defendant supTese the defendant should choose
TO take tre on that aytrment alone and 20 down 70
trial On and have verdict In hts favor, he would
be tntitls TO judgment bis verdict, ~ the
tim. that the plaintiffs have good claim which
they ocght and TOR which they would
but for this imperfect mode Of pleading IL II true that
the court might she plaintiffs from the utter loss OF
Their demand by awarding repleader, and giving
Mt 0bsfgn retsofo, bat that would net be
done without ruljscing bin 10 the costs OF the suit
In the meantime the court has had the trouble Of
trying entirely inma;srla Issue, aud 81 granting
relief nom the ce2ssquencss q y sieIvaras can,
and well estabhsd form OF count for goods 'old and
delivered There is nothing In The Code that prevents
e,peeiay n hss sdTersary hsd been eunni-r enough
let him 20 to The end would induce lin 10 be Of
opinion With Ierd Coke thns II l. sar 70 ''lor good
pf,cedsnts fer, utAd sfHHf iarsrfusn ~ = y-rcfus
grant tks motion In thi, et<s, though ths complain
will rot be gned when the cbectionAele wofds a-s
now, fer thaush u may nos contain cause % acton
II will not aantsin violation OF SQUAD rule o. plead.
ing; ana an very muoh inclined 20 grsnt y, vith
coats We have not etsD in the habit OF grasting
costs in 1uestons arising cut Of csnstructons OF the
Code tsasute ~ the necsssity the professicn have
been der of cropping their way amid the os.curty
81 its ensnfmsnts bst Go not bu: what We shall
be obea 70 alter practice and grant cosis 10 such
cases in order TO compel the profession 10 become
more gsIru uiar with the Gods. will nos, however,
bepir Ia. exception to the rs here though after this
uotita sbsl he v-ry APT 10 begin u rtth the next
case " the Mind that CONES before me
Court OF General Sessions.
s,fere Judge Bebee and Aldermen Dodge and Bard
J.Sp o. Dishonest Waiter .Pea af GaAv VIM. II
1se Ia a