The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-05-19
eum,ms Court-General Term.


so accused you; but secondly If did the charge
true And the question is does the code admit Of such
mode Of pleading That II is natural mode Of meet
ing the complaint, all must admit; that It lawful
before the code, in the form Of notice annexed
to the general ISSUE will also be conceded. Is the
well known origin and history answer this cues.
ton 1t contains besides express provision on this
very point The defendant may, It says, set up
"as many defences and counter claims he may
have" Each, Of course, should be separately stated
and be consistent with itself but rule Of law requires
that it should be consistent not only with itself but with
every other defence which proper may inter-
pose. 1t may be that, although person honestly be-
ees he never used the expressions attributed to him,
and although perhaps in proper fact he did
them, yet the bystanders, from misapprehension,
some other cause may have understood him differently
And should these bystanders called as Witnesses the
trial. honestly otherwise, to mistaken version
Of the Transaction must the injured party not only sub
NIT he must to that injustice but be deprived ALSO
as further consequence Of another and confessedly
good defence, namely complete justification Of the
charge, If, in truth it NADER So to interpret
the code and the lcsding under 1t would hardly be said
to be calculated to promote substanta justice between
the parties" And if there be any duty than
II is that which is implied In the words just quoted Sub
stantal justice distinguished from artificial ncetes
which for the future alc to guide tho Of
judicial exploration. For one do not regret the
change, If change be. The old lighthouses although
at times useful 1t must be admitted the cause Of
frequent shipwrecks, many disappointed practi-
toner and ruined client could doubt feengly testify
Ny conclusion il that the decision special term allow
ing the two defences to be separately stated right
and ought to be affirmed with costs
Buhles IS. We.trorM CIEREE J.-complainant alleges
that the defendant had charq the plaintiff with cheat
ing in his business The defendant traverses the
pain and additional defence, up By way of
justification that the PLAINTIFF all cheat IN his business
Car this be allowed? Can the defendant be permitted to
deny the allegations in the complaint and at tho same
POSITIVELY he ereay Under the
system Of pleading before its symmetry disdgured
by Ill considered legislation and judicial expedents
equally unwise, of its NEST ointment and nnexibe
rules was that matter in confession and avoidance could
not he combined with traverse Among the many evils
int reduced by the general ISSUE and one OF it's most mis-
chieyous anGnal es, the allowance OF inconsistent
pleas. The statute Of Anne 16 adopted ny allow
ing several matters 10 be pleaded Tin itself useful pro-
vision prepared the way for It's innovation This stat
ute required that the Leave If tho court should be first
obtained and in the beginning refused to permit
several offences where they appeared to be onstent
such pleading to the trespass guilty and
cord and satisfaction, non est acnn and to
But when IN the course Of time the rules of pleading
were nearly abrogated by allowing defendant to prove
any ma in addition to it. 81 course Inconsistent pleas
tolerated every special plea in bar being nconss
tent with the general issue" This was deviation
from most sautary principle. 1t was utterly at
rance with the original purpose Of those preliminary
statements which call pleading, to allow party to
deny the allegations Of his adversary, and at the
time up matter contradictory Of his denial This
would defeat of its most OBJECTS which is
to compel the parties BY the operation Of their mutual
to be tried thus saving to the parties and the court
at the trial. the labor and delay Of unnecessary
higher end they should allege the truth and nothing
but the truth IT. however you allow defendant to deny
the charge in the complaint and in the breath to
Justify It. you encourage him what is false by
douby fortfying his chances OF success. Thus, as
under the practice established under the general
issue (Which If not already, hope will be ie-
funct,) he would have the chance Of succeed
ing, not only on the strength Of his own case. but
Of In justification to confess the al
legation which IL proposes to answer avoid and ii the
he truth of at ia
issue for the court to try In endeavorng 10 get rid of
the useless formula the compexy and subti tes Of the
abolish its essential principles 1t has abolished the
forms Of action and oil useless and merely scholastic
render any system Of preliminary alterations nugatory
In instances since the adoption Of tho Code
these principles have been recognized and applied and
in cases precisely similar to this they have been fire.
quenty asserted and recognized Auba against Hunter
How. p r., 255. Lewis against Kendall ID. SO. In
declares the rule this subject be- where facts are
alleged in answer which, from their nature must be
within the personal knowledge Of the defendant and
which, If true, complete TO the claim, he
shall not set up in addition another state Of
facts not consistent with the previous defence"
Ii the defendant in this action has uttered the words
charged in the complaint and denies the charge he
sorting what he knows to be false he knows whether he
BY allowing him to justify If he has not uttered those
words, have nothing to do with the character
reference to the Justification Of the defendant for utter
ing them. We have neither the disposition nor the time
to investigate character conduct independent sub
the trial OF this action l. Did the defendant utter
the words charged in the complaint 2 II he did are
they true?-the truth being justification. The cbicc-
ton is offered that II the defendant is not permitted to
justify the plaintiff may by possibility prove by false
Witnesses that the uttered the Islander charged
in the complaint and he would then be without redress
unless he could fall back upon the justin aion and
the truth Of the charge Bot is not the plaintiff in this
respect much In the dcendant's power the defen
dant is in the PLAINTIFFS For aught know the defen
dant is capable Of proving the truth Of the charge by
perjury as i the plaintiff Of the uterance Of the
ence TO such contingency arising from either side The
only prot the law affords against false evidence
ssts in the pains and penalties Of perjury
mitted If such apprehension 10 find any place in
deliberations, II would equre either complete
toraton of the old system in all lis amplitude the
abolition Of preliminary statements altogether 10 guard
for instance against the danger of insufficient state
ment Of the cause Of action the hazard of the proofs
varying materially from the statement against
doubt existing to the legal sufciency Of
other Of two different modes Of framing count,
ought to have the old declaration, with its prolixty
repetitions and numerous counts not forgetting the
general issue with the license of pleading proving
ANYTHING Of everything under IT. or should prefer 4
so imminent az to counterbalance the advantages of
pleading that the system should be abolished alto
gether and the parties be permitted to 90 to trial with
out preliminary altercations The only purpose then,
for which this matter alleging the truth of the charges
in the complaint could be retained is show mitigating
crcumstances but It is only where tho defendant con-
fefses and avows that he show mitigating cream
stances. Graham against Stone, How p. 49, Newman
H. 54) entirely with Judge johnson in Gra-
ham against Stone, in all the positions he supports in
that case; and although other judges have not
quiesced in his conclusions, that mitigating cir
cumsances must necessarily be pleaded In connection
with justification, to it is clear that they cam
not, at all events, be pleaded where the defend
ant denies the charges in the complaint The
decision of the Special Term, then, ought to be
reversed have dwet somewhat longer the subject
Of this appeal than ts Importance 9. FIRST sight would
to require but think should avail ourselves Of
every opportunity Of constructing rational system Of
pleading by which the great end of all preliminary
statements may be accomplished and this only be
done by retaining all that is conducive to this end in
the original system and looping of all that Is at vari
with It,. While studossly avoid the subtctics,
the 6ctons, the scholastic distinctions and useless for
muln Of that system together with the later nnoya
TONS by which its primary object entirely frus
trated, preserve those principles originally be-
longing to it, by which issues may be developed by the
effect Of parties mutual allegations and materially,
singencss and certainty in these issues secured and
obscurity proixity, and delay avoided The Code
bes to do this eectualy and every successive
casion presents itself shall have abundant opportu
nifty, by combining practical experience with our