The Portland daily press., 1868-12-11

/
sible, and to shift off to the shoulders of 9TH
ers as much of the task as might be practic-
BILE. The King himself was no clerk, and nee
essariy employed the pen of another.
King: Your name, sir9
John Doe. (plf)
OF whom do you complain?
Richard Rowe (dft.)
fwhat?
The complaint follows in the lowest words.
Your lounger abbreviates the brief
| John Doe declares that Richard Rowe
owes him e10.
| Richard Rowe pleads release.
John replies release is an escrow Ia condi-
tional one placed in the hands of third
party.)
Richard rdoins conditions performed and
release afterwards delivered.
| John SURGEONS performance apparent and
literal, not substantial and in spirit. A .fsme
coUert (married woman) maGe the release
which is vsid.
Richard dem,rs twhat of it; suppose she
was married her release is not void.)
John joins demurrer.
King gives judgment for John.
The law of the case: A married woman's
deed is void.
| ORIGIN OF STARE DECIsIs (sTAND BY
| DECIsIoNs.)
| The judges were officers of the King and it
was their duty to decide causes as the King
would decide if he sat in person. The Kings
decisions were at first consulted and then
subsequent decisions by those representing
the King. This accounts for the remarkable
uniformity which runs through the whole ju-
dicial proceedings OF England.
ORIGIN OF COURTS, wRITs, KINGS BENCH, &c.
The King hears complaints where both
parties voluntarily appear before him. {.
He compels the attendance OF the absent par
ty, complained against by writ Ia writing.)
He delegrtes the authority to. hear the
case stated in the writ. He authorizes
a .rd person called his Chancellor to issue
his writs for him and hear causes in his place.
Business multiplies and the Chancellor
confines himself to issuing writs and hearing
such cases as the ordinary course of common
law gave no remedy for, THAT was the foun-
dation of equity.)-Copies of the writs
were kept in the Chancellor's offce.-Al
like cases were stated in like form.-The
Chancellor in the name of the King delegated
the authority to hear causes.--Ths author
ity was conferred at first to try one cause,
then to try causes generally, and this was the
origin of the Office ofjudge. Kings first
held courts to try causes at common law
They now hold courts but not for such pur-
poses.-Judges hold courts in place of the
K.ng.-In the first formal organization of
judges each. The first was criminal court
to try causes for the violation of the Kings
peace and presided over by the King himself,
and hence called Kings Bench. The court
heard land cases There was not much per-
sonal property them and that was called the
Court OF Common Pleas. As personal prop
erty cases came to the Chancellor they were
sent to one court or the other, at first as he
chose, and afterwards as the plaintiffs chose.
So much for excerpts. Lounger took no
note of time till Tucker was devoured if not
dgested. The author believes that the sys-
| echh VI SPSSiot PiOouihS 10 luC POiiOStAoh VI
human wisdom in the administration of JUS
tice, that there was time when English
lawyers like English divines and English
scholars were pedants and refined the system
to such degree Of nicely that they lost
sight of the substance in the pursuit of the
shadow and sometimes cases were lost or
won, not on their merits, not on any substar-
tial rules of pleading but on matters of mere
form. In the early administration of law
in this country growing dissatisfaction grew
up among ignorant lawyers and the people
| generally with the system, which required
for its successful practice a critical, analyti-
cal mind and good knowledge of law. All
who had bad causes wanted the opportunity
to confuse the jury and mystify them by pre-
| renting to them more issues at once than
they could comprehend. Judge Tucker flor
| a Judge he was) would reform the system of
special pleading, leave out all not applicable
to the institutions of this country, all that is
merely pedantic, and Apply it the admins
tration of law. he thinks the system neces-
sary to separate questions of law from ques-
tions of fact and to keep the judge and the
jury from encroaching on each others prov
ince. He is particularly severe in his strict
ures on the administration of law in his ma
| tive Virginia and those legislators who have
undertaken to abolish special pleading and
to prescribe rules inconsistent with any
| proper administration of justice.
In commenting upon the rule that it is not
| allowable to plead and demur 10 tue same
matter he says. This is not law In virginia.
Tue antiqutaed idea that the proceedings
| in On oo+;o,, ore e quest atter truth is explod
| oa rbe old notion that man should not
L., hot and cold in the same breath is dis
oayded as only worthy of the birds and beasts
| and Satyrs, of whose talk we read in Ksop.
Accordingly the defendant may, uno fatu,
confess and deny the same fact, and the con-
fession and denial are both put in the record
which was contrived by the unIettered wis
dom of our ancestors, to contain precise
and consistent statement of the facts of the
case, as the minor premise of syllogism, of
which the Judgment is the conclusion. So
cou,riyed. the Judgment in its naked form,
testified to all the community and to all pos
terity that such being the facts such is the
law. What 1t testifies now who can tell?-
Truly the march of mind In these enlighten-
ed days has made great progress.