Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1870-02-25


has often spoken in strong terms. It is
announcement to make extensive quotations
from it's reports; but the Senate will par
don an extract from the opinion of that
Court in the case of McFaul Us. Ramsey
go Howard, 523,( a case coming up from
Iowa, State which has ''Code" very
much like our new one. The Supreme
Court says:
t"The Common law which wisely COM
mits the decision of questions of law to a
Court supposed to be learned in law, and
the decision of questions of fact to jury,
necessarily requires that the controversy,
before being submitted to the tribunal
having Jurisdiction of it should be reduced
to one or more integral propositions OF
law or fact; hence it is necessary that the
parties should frame their allegations to
support respectively the demand or the
defence, into certain writings called
pleadings The end pro.
posed is to bring the matter of litigation
to one or more points. simple and imam
biguous. At one time the excessive accu'
racy required the subtlety of distinctions,
x and the introdution OF
cumbrous forms. = had brought
the system of special pleadings into dis,
repute. But In modern
times it has been trimmed of its excres-
cences, and the pleadings in every3form oil
common law action have been reduced tC
simple, clear, unambiguous forms.
K x This system, matured by the wis
dom of ages, founded on principles oil
truth and sound reason, has been ruth
lessly abolished in many of our States,
who have rashly substituted in its place
the suggestions Of sciOlistS, trtO in0ent Codes
and systems Of oleadings TO order. But
this attempt to abolish all species, and
establish single genus, IS found to be
beyond the power of legislative omnipo
tence They cannot compel the mind
not to distinguish between things that diff
fer. The distinction between two forms
of action for two different wrongs, requlr-
ing different remedies, lies III the ma
ture of things; it is absolutely inseparable
from the correct administration Of JUST ce
in common law Courts.
"The result of these experiments
x has been to destroy the certainty
and simplicity of all pleadings, and intro
duce on record an endless wrangle in
writing, perplexing to the Court, delay
ing and impeding the administration of
justice. In the case of .Iandon VS.. Toby,
III Howard, SID, a simple
action OF promissory note, the pleadings
of which, according to common law forms,
would not have occupied page, they were
extended to over twenty pages, requiring
@ TWO years Wrangie before
an issue could be formed. = : <
In the case of Bennett VS.. bu terWorth, III
Howard, 667), the Court
was unable to discover from the pleadings
the nature Of the action OF of the rene
dy sought. It might, with equal proba-
bility be called an action of debt, or det-
inue, or repleVin, or trOver, or trespass, or
a bill in chancery, The jury and the
Court below seemed to have labored under
the same perplexity, as the Uerdict was for
$1,000, and the Judgment was for four
negroes. < : < This Court has
endeavorod to impress the minds Of the
Judges of the District and Circuit Courts
of the United States, with the improperly
of permitting these experimental "C0deS" of
pleading and practice 10 be inflicted
upon them In the last mentioned case the
Chief Justice in delivering the opinion Of
this Court, says: The Constitution Of the
United States has recognized the distinc-
ton between law and equity and it must be
observed in the Federal Couts.
I'm the States where the Courts OF the
United States administer the common
law, they cannot adopt lese n0Uel 3n0en-
TONS. We have made these
remarks, in order that the Bar and Court
OF the United States may make their
records conform to these views, and not
hear special demurrers and pleadings,
which are not required to conform to any
system founded on reason and expert
ence.''
These weighty words from the Supreme
Judiciary Of the Union are commended to
those who reverence profound wisdom and
experience. speaking in harmony with the
sanctions of the Federal Constitution it
self. Shall we in North Carolina listen to
these words and root out this g Code - or
shall we still be led by the nose by one or
two freshly imported innovatOrs far more
remarkable for a1ertindcity and self assertion
than for sound sense or legal Iearnimg9
The cost OF litigation under this Code
is hugely increased. Formerly case in d
Justices jurisdiction cost forty cents now
t,C0 to fUe dollars, or more. la the Supe-
rior Courts it is increased in like manner.
Fees are doubled and quadrupled in ell di
rections. It is impossible TO give details.
They IRE found on nearly every page of
the 8 Code" Some ado has been made
about the adjustment Of the little old four
dollar foe Of attorneys aud behold q if
teen dollar fee Tor attorneys is snugly insert
ed, under another name !! The people are
entitled to know such thugs, and they
must. The purpose, it is argued, of the
great admitted increase in costs is to keep
down litigation. This really means that
instead OF granting the people cheap JUS
tice, we must frighten them away from the
Courts by the fear of ruin through costs
and charges wantonly imposed. Noble
idea worthy of '' the sciolists who invent
codes to order y But all experience shows
that litigation is greatly multiplied by such
{" Codes" A distinguished lawyer, once
on our Supreme bench, points to the tell
ing fact that all the decisions upon techni-
calides strictly, rendered by the Supreme
Court OF North Carolina in the past seven
ty-fve years, would not fill two volumes ;
while the same class of decisions in New
York in the last twenty years, would fill
fifty volumes. That needs no comment.
Another great error ia our Judicial sys-
tenn, not yet fully realized here, but pro-
foundly felt in New York and recently
changed there, is the shortness of the Off
cial terms of the Judges and no prohibit
ton against their being reelected. A Judge
for life, or very long term, is inspired by
the dignity of his vocation, the glory of
the ermine, and tho ambition to leave af-