The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1870-03-22

active practice; therein, think, differing from
Mr., Howard And he has published other law
works, indicating especial attention to legal
subjects on his part, say, IA Digest OF New
York Reports" in six OF seven volumes, and
what he calls IA National Digest" not yet
completed, but which has reached its fourth
volume. s'Abbott's Forms or Precedents'
would be found useful.
There are some two or three publications
called "Books of Practice under the Code"
framed upon the book-making ideas, which
dictated such books of practice as "Sellon,
Impey, Tidd," DC. 1t has always seemed to
me that book of this sort could scarcely be
useful where all the details of practice down to
the length OF notice of trial were expressly
regulated by positive statute. | do not own
any of them, have never looked INTO one Oh
them, and imagine that their value must be
slight indeed. I do not remember the names
of the authors.
It NAV be that COPY of our "Session Laws"
from lS4, to this time, would conduce to MAX
ing your library perfect; it would facilitate in
vestigations in the matter of chronology. be-
fore suggested. Whether you procure them
or not. would advise you to order copy OF
the small pocket edition OF the Code without
notes. All the law booksellers here have 1t.
It is useful in prescribing the Code alone,
without the enormous mass of notes which en-
cumber the annotated editions; and 1t contains
this very useful feature: At the commence
ment of each section which has been at any
time altered, it states the date OF each altera-
ton.
The Code purports to be framed by three
commissioners appointed for the purpose.
Common fame asserts, and without contradic-
ton, that am aware OF, from any quarter,
that Mr.. David Dudly Field, who was one OF
them, drew the whole instrument, and may
properly be regarded as its sole author. /
have reason to believe that very large pro-
portion OF the subsequent amendments were
framed by him. or at least were passed after
consultation with him by the respective COM
mittees, who from time to time reported those
amendments to the Legislature. Mr.. Field
was, when the Code was adopted, ever since
has been, and now Is, o counsellor at law IN
full and active practice in this city. 1t would
seem highly probable that to him numerous
inquiries must have been addressed, similar 10
those coming from you, to which am now re-
spending. think 1t not unlikely that ne has
long since prepared full and instructive
form of answer to all such inquiries, and for
this reason, and because he must necessarily
understand the subject much better than do,
It might be well that you should address MIN
on the subject. No harm or inconvenience
can result, for you will at least receive
courteous reply.
The Code has elected, and is now the sub
iect of much conflict In opinion. AS fur as l
can at present recollect. all the judges who
have thought fit to commit themselves on the
subject, have manifested, IN o greater or less
degree, lack of respect for the design, the
execution, and the effect. One OF the most
able and temperate of them has stated that
much of the Code was framed for the mere
purpose OF change In modes and Of gratifying
its authors fancy, even where the form or
mode itself could not be changed by making
change in the name, an achievement which
of course Is never impractlcable. thlnK no
careful and wei! Informed investigator would
be likely to dispute this. 90.
When the Code was adopted, onr constitll-
tion required that the trial by jury in all cases
in which it had been heretofore used should
remain inviolate. When the Code mingled,
or allowed to be joined in one pleading,
claims heretofore cOgnizable at law only with
claims cognizable in Equity, 1t followed that
the case must be tried by jury; the first branch
because the constitution required 1t, ana the
second because there was no constitutional
impediment; and however inconvenient. no
actual impractcabillty in submitting an Equity
case to O Jury. You will see by looking at the
Code that it does not in terms provide for this
express case OF mixture, but it does in terms
quite sufficient for the purpose OF obeying the
constitutional rule, designate the cases whicn
must be tried by jury, unless parties other
wise consent The courts, by decision, have
dealt with the cases Of mixture In conformity
with nv suggestion above stated, land think
the effect OF the decisions Is that where. OF the
close Of the testimony, in case brought be-
| fore Jury, there Is no common law case, the
Judge may dismiss the jury, and assuming the
office and duties Of Chancellor, may decide
amp Equity case that Is presented oy the
| evidence.
NV personal views as to the value OF the
Code are of no Importance, and need not De
| stated All the lawyers who have been admit
ted to practice in this State for the last twenty
wears are conversant with the Code, and OF
course are not experts In the old common law
practice and pleading. Most OF them are en-
| tirely Ignorant of IL, and you may well imagine
that the Code could not easily be displaced by
any attempt at reaction. The Courts OF the
United States do not recognize the Code, but
adhere to the old practice, with Its settled dis
tinction between law and equity. This cir
cumstance often leads to much confusion, as
you may see Illustrated in some reported decl-
sions of the United States Supreme Court: 1t
is truly laughable to one conVersant with ooth
systems to see the blunders into which lawyers
| of great ability, who have come to the bar
| withing the last ten or fifteen years, some
times fall into framing declaration, plea, or
subsequent pleading at common law, in the
| Circuit Court Of the United States.
There is very little in the Code which is new
| in principle, or in respect to which, as sub
stantia novelty, the authors could claim the
|
mingling legal and equitable claims or defences
in one suit, in order to prevent the suitor from
being turned out Of the temple Of justice mere
| ly because he had entered at the wrong door,
| had shortly before been very broadly and dis
tinctly developed in high place. and was in
fact the seed from which sprang the Code-the
commissioners merely executed it. / think
the Code contains. as best rccollect ut this mo-
ment, only one thing which can be called new
in principle, and this is an attempt ut an abso-
lutte impossibility in prescribing the rule OF
pleading 1t declares in substance and effect
| that YOU shall not plead, as in the old system,
the conclusions in law or in reason from the
facts Of the case, and at the same time 1t pro-
hibits you from stating or detailing tile evil
dence merely on which you rely. You are re-
| ouired to state the 'iactS" which that evidence
conduces to prove. Here, under the name oil
.'facts," we find some things require to be
stated which are neither in the vulgar sense OF
the word the mere fact, or transaction, or
event, which did occur and can be proved by
direct evidence, and are not the general, ra-
tional or legal conclusions from such fact,
transaction or event.
Now, according to my conception, 1t requires
somebody much more wise or more subtle
than myself, or any special pleadcrl have ever
been acquainted with, to define or lind out
what it is that should be stated in regular
pleading drawn in compliance with this requi-
| site Of the Code. am not aware that any one
has ever attempted 10 do it. The common
practice in this State is to tell your story pre-
| csely as your client tells it to you, just as any
| old woman In trouble for the first time would
narratc her grievances, and TO annex by way
.1..I.- ,i-, vi