Daily American telegraph., 1852-11-01
Legal REFORM.

things are undergoing severe and careful exami
nation and criticism, preparatory 10 the apphca
tion of the allmoving hand of improvement
nothing seems more worthy of the attention of al
classes than the proposed revolution to be effecte
in the various branches of the law All the Ia
terests of every member of society-ife, liberty
property, happiness--are subject to the power 0
the law, and liable to come under its operation
As legal sage has remarked, none IS so exalted
as to be above its influence, and none so humble al
TO be unworthy of its protection Ii is, then, th'
interest of every citizen that the laws shall not only
be good in themselves, but properly ana justly
administered.
Our whole system OF law was founded orgi-
palIv upon the old common or unwritten law OF
England and though indebted to 1t for all its
greatness and best features, IT has, at the same
time, inherited from it many cumbersome defects
which. in the present age of the world, amid the
lights Of knowledge aud experience we have ac-
ouirea. contrast most unfavorably with the ad-
yanees We have made in all other things
In several States of the Union, especially In
New York, legal reform has received much atten-
ton and the people of those States are now en-
loving the advantages resulting from clear concise
aud rational systems of jurisprudence. Whether
those systems are all that they should be, exper-
ience alone can show.
Time and space will not permit full examina-
ton of this subject. We shall merely direct at
tention to a few of the branches in which reform
is most needed. ~
Practice and pleading, as they direct the mode
of entrance into the great temple OF justice, with
out which nothing can be effected, require most
the careful hand of reform. The rules Of practice
are. we think, more important subjects of study
10 one desrous of becoming successful prac-
tising lawyer, than the most intricate principles
of law; for on them must he, in nine cases out
Of ten. rest his case, and, if ignorant of them, he
must fail. whatever be the merits of the cause.
simplfoation is here the great desideratum.
1t cannot be denied that special pleading is
well worthy Of our admiration as complete
system of legal logic but, is the preparation OF
the circumstances of a case for the application OF
the principles of law, or for the decision OF
Jury, so herculean task as that an abstruse
science is necessary to effect it? For the sake OF
justice it is to be hoped that it is not. BY the
English system of pleading, adopted in the United
States, an issue for trial by the court jury, as
it may happen to be Of law or fact, is arrived at
by the natural effect Of the pcadings themselves.
A point is thereby reached where one party al
leges and tnc other denies, material fact, upon
which i.sl Joined and trial had. In almost
ever ,,. AN Of procedure, including our own
ecat, ), n, no issue is produced by the plead
ing La tl.a, it is true, we have great advan-
tage over many others; but let us see whether
there be not defects as we'll as advantages. BY
special pleading, causes are frequently decided
upon points Of mere form. In case Of demurrer
for insaficiency in tue manner of statement, or
where issue is joined on plea in abatement, the
issue involves question of form only, and, as
this is generally decisive of the fate of the cause,
the action must be decided upon point of form,
and not upon the merits, which is unjust. For
example, If the plaintiff, in an action for assault
and battery, should omit to state in his declara-
ton the time when the assault was committed,
the defendant can demur specially for this omis-
sion, and the decision must be in his favor
though the time stated by the plaintiff, If stated
at oil, need not be proved as laid Thisis clearly
contrary to all justice Again, on pleas in abate-
ment, cases have been decided on mere matters
Of FORM such as the Christian name Of the de-
fendant. 1t is true, indeed, that of late years
amendments Of the plendings, in these respects,
are very freely allowed; but why should sys
tenn prevail which will cause injustice unless
eyaded by the ministers Of the law
The many Inconsistencies Of the old system of
pleading are SO gleriUg that they should have
long since caused It's abolition. To give some
examples-a defendant may plead, in an action
OF trespass for assault and battery, two entirely
repugnant pleas, viz, not guilty THAT he did not
commit the assault, and that he committed it in
self-dcfence; or, in an action Of debt on bond
he can plead that he did not execute the instru-
ment, and also that he executed il under duress
Of imprisonment! These are truly absurd
Again, the general issue or general denial by the
defendant of the allegations made by the plain
th, gives room for almost any ground of defence
to which the defendant, at the trial. may choose
10 resort; the questions offered by this issue
being, in fact, whether the defendant be indebted
to the plaintiff, or liable to the plaintiff demand,
as set forth in the declaration. These questions
are so very vague and general that they give full
hoerty 70 the defendant to work surprise upon
his opponent by making some totally unexpected
defence, for which he may be altogether unpre.
pared clear and plain statement Of wha
particular fact is denied would remedy all this
The case OF each party is SO efTectually concealed
from the other that it is utterly impossible, be
fore coming into court, to know what each is 4
prove or disproye. Besides these few Of III
many weiphty objections To he podo a. ,ko -.