, 1873-01-25

ITO think is declaration. in an- form of actor.
that may strike his fancy. Afterward ho can NJ
! any time amend, either on h;s Own molten ar
after demurrer, alter plea, and sometimes after
trial and verdict. Beginning With any action he
7 chooses, he may amend aD3 amend en-. OF oaa
aud iuto aaGther through the whole list Of Iar,l
] remedies, and eren beyond. Nos; lot tho re,Jer
exa!nno tina SECTION Of tho revision. and see
what there il left OF common Law practice:
+ f9. At nny tiKno before final Judgment in .
are-jnst and reasonable, introducing anv nartp
necessary to b. joined pls1ntl1 Or defendant d..
continuing s7to an; joint paafnid joint defsnaant
changing the form Of action and in any matter ehes
In form or aubstsnce In any process pleading or pr
seton for tho claim for which It vas ntsueed to h.
brought, Or tho defendant to 1nate legal dsfense
The adjudication of The Court allowing an ainepd
nent abau be conclusive e1idence CT tho identity n,
the action
Under this section there ia absolutely no end
to amendments. There is no limit or Restraint
whatever. Anything is permissible, ut any time
tiH to sustain the action for the claim 70. which
It WIS intended to Ee brought" How is the
Court to know what tho plaintiff stintende17'
And is not the defendant entitled to iks pri7i-
1eges, IL bringing forward ths defence he I'm
amendments the sitting Judge shall thon hold to
| 10 ''just and reasonable" to accomplish the
! foregoing objects, this act permits The truth
| is that By that. section tho common
| law practice, instead OF being" preserved"
| is utterly and completely destroyed.
Destroyed in principle, in application, in detail
| it is plueked up By the roots and cast to the
| wind. The Judges nov on the bench may, for
little tmo, in the exercise Of that large discre-
I ton with Which they are here clothed, and in
| accordance With tho former practice; a1hera
t somewhat to the old rules Of pleading, and re-
qui1e tho old forms Of action to ,ba observed at
least in nanne- but the moment Judge CHOOSES
r. H. Enr {fay - tn4rk
To show how this new practice works, take sn
illustration from q recent casa which actually
occurred It was en- ordinary suit upon .
note. Tho dafendant rleaued q ses-af
BY law: The issues were all made up,
o Jury empauefled aud swozn, the plaintiff
offered his note in evidence, and concluded his
side OF tho case. Then the defendants counsel
drow forth q long account, conposad OF manv
different itams, md a:temp pted to establish it'll
proof The plaintiff objected thas, under the
law (statntes, vol. 2, p.-as7, 11s), tho defsrd-
ant could not I've permitted to provo an accoun:
whereof he had not lied copy. Tho objection
being sustained the defendant asked lea7e to
amend, which the Court was, Of course, Obliged
to g1ant. and, with bit OF mucilage, he fastened
the account toohis plea aud proposed to go On
with the evidence. But the plaintiff applied
meaa me- ssidavit tat l. hd the s, Sitnsx.ss nn IL
prove % tlat Ito ' account; had dali ali been ZEE fnaI psi
hut did not have them present. because under
pleadlngs they wore not ncoled. Tho Court
granted thncontiuuance and discharged the ju1y.
It is evident that similar performance might
be repeated indefinitely, in the zamo caae and
no foresight is required to perceive ta:s mauya
lawsuit could thus be prolonged to any extent.
Complicated cases often consume weeks time
in hearing evidence; the witnesses have. some
OF them. been brought from q distance q. heavy
expense. And yet, under this revised net, moth
irg is settled; amendments are always possible
T.. H. - - ,4.-t -
it is always within the power OF either party to
make An amendment which will absolutely COM
pei another trial. Tnis is called common Ian
practice. Sin its nurity!"
Formcr1J, the law provided what should bsthe
decision OF the Supreme Court, in cafe where
the Judges were equally divided in opinion. It
declared that, in s11ch sa event. the decision Of
the Court below 80 ii affirmed Statutes, Vol.
], P 5l8, SIT. This,nad formed g part Of tho
Law from time inlmemori2l. But it ie repealed
by the revision, ,.aud not re-enactod-- Forgotten
probably. il eho haste Of q sre-w:itin5." Pefh.7s
it viii lie said that decision stands practically
affirmed unlcss the Supreme Court aha!l reverse
it, And it is tr11c thai such was the lar, few
failure to reenact, the Legislature have declared
it to be law no longer. What shall be said Of
such specimens Of !" work ;" ss tilis3
Ono OF tho most notorious instances in which
the needless changes Of tho revision hn:o i'm
posed burdens on tac I'cop1o, ID in legal forms.
ion has some vetlat changes Rarely affecting
the sense, thcJ get comrel tho throwing away q
ell printed blanks end records previously o1st-
ing. Thua, o.ery CLcuit Clerk in tho State has
been obligcl to throw a::ay great piles OF blank
writs, for which tna county paid large prle=s,
end supply LiElrelf anew q. public expense,
The Same is true il tho County Clerks Office,
md the books Of printed records in matters Of
all became uEeiess; they Lave been aet
aside and now ones procured. It il not
D large estimate to say that tho .a7erage
amount Of needless expanfe, thus imposed en-
below $500 for every county: Those who an
curioue about tho cost and extent Of those veGba'
changes made by the revision, should co1eut
the Circuit Clerks and the County: Clerks who
were obliged to have tho new blanks made, and
who know the large e1pcnso-
Mr. Hnrd vchemeutly insists That all the
changos made by hi5 revision wero Known to the
mcnbera OF the Legislature, aad approved by
changes, particularly BY omission, which vert
not known to most Of tho members while the re-
vision was pending, and which are unknown to
many OF them stall omissions which 1t
is very doubtful il nfr. Eurd himself nov knovs.
Take tho assessment OF damages on dofault
made by tho clerk. Statutes, vol. !, p. 512 S22
Did LII. aurd know that 1,o had omitted thst
section from his revision? II lle knew it, can
he give good reason for the change? Very
ccrtain it is, that ro such alteration was known
held up to this date. SO far e5 information hss
been received, the uzusl orf9c< Was made in u
the default" clark to assess." One Of tha
most careful and acsontlve members Of ths
House, himself lawyer, had never heard Of ths
change, and took his. own defaults in the ealns
manner. OF courso the judgmsnts arc worth
less: But Who. could suspect that provision %
needful and aalpta.y would ever be o1nitted7
Haying thus called sttsntlon to a omission /
by which the usual powers aad duties Of acletk
are abridged, it viii be proper next to mention
ins ahce, III The saule act, where the authority
OF tho clerk il 30 far extended as to includa tu-
diciaE functions. That IT, there ia an attempt to
do 30. Tho revision provides that Judgements
by confession, "enternd in vacation shall hare
like force and effect, aud from tua date thereo..
become lions. in like manner nnd extent a. iudgf
ments entered in ter1n.' Statutes, vol. 4, p. 29i
i 153. 4 judgment ean only be- q entered" By
Tho clerk. And before he can enter =
Judgment ly confession, in vacation,
'le must frat perform Judicial act
bY deciding that tic papers before him az
thorizo Euch . Judgment, and therefore be WI
rertTar that int1e7n.nt Tfnt:1 liza hea dnne thf8.