The Rutland daily globe. [volume] (Rutland, Vt.) 1873-1877, 1877-07-11

redemptions, but will not foreclose without
careful provision for the exercise of the
right to redeem; it will protect against
fraud and deception, but will leave parties
who have fairly contracted to their legal
remedies accordingly, unless an absolute
failure of justice hereunder is impending.
And, fortunately, the administration Of
its powers has generally been wisely COM
mitted to the most sagacious of our iurists,
who have been extremely careful to OBJ
serve the limitations of its usefulness, to
avoid interfering with any case or subject
for which legal redress could be devised,
to follow the laws and the principles of
the law so far as applicable, and to direct
Its exercise in favor of the highest and no.
blest justice TO all within its sphere.
Now OF course there must always be
some expense attendant upon the settlement
of controversies by litigation. The per-
mutations of human action are endless.
There are two sides to almost every ques-
ton, and there is hardly ever found an
exact parallel 10 any presented case
the state is under no obligation to assume
expense of the settlement of private quar-
res, certainly not further than to provide
the necessary of machinery therefor; more
over, delay to certain extent is desirable
because, among other reasons, it affords an
opportunity for hot blood to cool, and tends
to bring about by the influence of reflec-
ton and argument the amicable settlement
of hundreds of contentious which might 9TH
erwise result in life long alienation and
raucor without end.
Yet we should all agree that expense
should be reasonable and delay brief
In the practice of our court of chancery
there are various obvious ways in which
desirable results in both these directions
might be obtained.
At the commencement of the sit, In the
matter of joining of issue, at present all
| bills are made returnGble to some stated
| term, held semi-annually, and answers are
| TO be filed within forty days from the rising
| of each court, with further time for repli.
| cation before any testimony can be taken
| or further progress made. This is wholly
unnecessary, and is not the practice else
where. Answers might be required within
| 20 or 30 or 40 days from the service of the
| process, as in mauy other states, or at
monthly rule day as in the courts of the
United States, and while all rights are pre-
served, the pleadings could be made up in
any actual controversy within tEo or three
months in.tead Of consuming from four to
twelve months as is now required.
| Then as to the taking OF evidence, it is
| ubtlGbo " hNnu Oub tuO phttiCo WIN
| their counsel and master to write down
questions and answers which are TO be
subsequently read in detail to the court.
1t amounts to casting upon the parties
the burden Of two trials instead of one, and
the first hearing when the testimony is taken
ia always inordira.ely slow and wearisome.
Everything has to be noted and written out
accurately and with care. There is prac-
ideally no limit to the ground which the
questions are allowed to cover. Either par
" may insist On having anything be desires
written down. Then it all has to be read
over to The witness, and signed and certl-
fed. There Is no opportunity for the test
Ing of witness truth by quick or search
ing cross-examination. There is no OPP
portunily for the judge who is to try the
case to see and hear the story of the wit
nesses, to note their bearing or demeanor,
TO observe their swftness to testify or their
reluctance to disclose, all which are univer
sally conceded to be of the greatest value
in trial by jury. This taking of testl-
mony by deposition is also the chief cause
of the enormous consumption of time,
required in chancery litigation, for the
meeting of the persons required, time after
time, is difficult matter TO arrange, and IL
allowed to slip along, from term to term,
often by virtue of spirit Of accommoda-
ton, greatly to the wrong of the par
ties to the cause. And it also
is as we have seen exceedingly
expensive. 1t might well be at once wholly
obliterated and abandoned. 1t would be
hard to state any practical ground for It's
retention. When the cause is at issue lei
the parties and their witnesses come before
the chancellor in open court and the cast
be tried orally as is suit at law. In nine
cases out of ten 1t would take much Lees
time than is now consumed in the reading
of the dispositions previously taken. Tht
chancellor could restrict the evidence t
questions incident to the issues of the case
could prevent all delay and injustice; coulC
himself see the witnesses and note their con
duct and appearance; could judge with fa
greater accuracy of the weight due to thei
testimony could sift at once the merits o
all disputed questions of fact and speedily
decide as to the appropriate disposition o.
The cause. And thus within a year from
the commencement of suit it might usual,
reach termination, with much more Ger
tainty OF justice and quarter of the pres
ent burdensome expense. If the testmon,
| is needed for purposes of review let it BIZ
{ taken by stenographer on the spot AM
+ written out for the appellate court or bette
still, let the chancellor, as in cases at law
| state the facts which he finds to be proved
and reserve for the supreme court the prope
, disposition to be made of the cause thereon
after argument upon the law.
E With these simple but radical modifica
, tons, also empowering the supreme cour
q to dispose of the cause by its own deere
instead of sending II back to the court o
. chancery, unless necessary for further pro
ceeding or accounting, the whole practca
, conduct of the litigation would be i'm
proved; the shame of the laws delay woul
, exist in the court of chancery no longer
justice would be denied no man by reas0l
of its undue cost our courts, especiall
the supreme court, would be relieved o
! much burden and our administration @
justice would be accommodated somew ba
!. to the spirit of the age.
There is nothing novel in these sugges
G tons. They have been long in operat o
: all around us. Listeners from other state
a will no doubt be surprised enough at GU
{ reluctance to adopt them. But even
: them, perhaps, the statements here mad
+, will be of interest by showing the progress
d sive character of their own institutions a
G compared with the torpidty and languo
@ of ours.
r have reserved no time for the discus
G sion Of other matters pertaining to the sui
/. ject which had occurred TO me as possibl
|. of use matters respecting the danger
O arising from the stralning or enlargement
e court of chancery, and its practice
i methods of relief; respecting appellai
IS proceedings; respecting the written stat,
f.; ments of the parties, called pleadings,
n the cause; respecting the functions of ma
N | tera in lhancerv. rpanectinp certain rul,