, 1877-05-12

Territory Of Washington--second Judicial Dis.
trict-In the District Contributing Terms
at Olympia-0f the April Term, 1877.
tleutou Hartsock, v. c. G. Tyler.
It is idle to affect to ignore or deny
the dazzling fact An extensive, radical
and thorough revolution has been etfec-
ted. Justice a. last has himself been
called to take the bench. and under
Judges and lawyers must look to him in
stead of fossil precedents, for what ought
TO appear in their plcadings and decis'
ions. Adjudged cases must now be rated
at their actual worth, as having no in
trinsic authority, but as serving use
full purpose by illustrating how justice
deals with particular sets of facts, and
,echnicality must at length be recognized
in her true character, no longer to he
feared or hated, or despised as one Off
ciously insisting on arbitrary and frivo-
lous niceties, but as one to be forever
yenerated as the hand maiden of Justice,
enforcing at his instance the exactitude
of perfect truth
Has this revolution reached to and in
volvcd this Territoryf This brings US to
the third and fourth of our Inquiries
third, had our Legislature the power, and
fourth, has it experienced the power, to
ordain code for US?
The third question is briefly answered
The power was abundantly granted in
the organic act. Although the decisions
of the Supreme Court of the United
States from 1858 down to 1878, were adj
verse to this proposition (Orehdrd @.
Hughes, 1 Wall. n. Dunphy o. Kteins'oith,
IL Wall. 6l0), the doctrine is now settled
--solidly and forever settled--as stated.
(Hosbuckle .. 76ombs' 18 Wall, GAS.
Hsrdtield .. Griffith. III. e57. DaUis o.
BasLand, Ib. $500. Any position hereto
tore assumed 10y the district and supreme
courts of the Territory to the contrary
has been influenced by the dominant au
tlority of the federal court. But were
there no adjudcatioDs putting the mat
ter past dispute, the DeClaratory Act of
Congress would finally dispose of it.
BY thai act the power in question is be-
yond question aow conferred, and any
attempted exercise of II confirmed. (Stat.
at Large, p. s7) Fourth, Is our own
Code adapted to effect the end that all
the other Codes propose
Our old Code constantly was, as it
stood in its original shape, passed by
our own legislature in 1854. 1t certain
ly was, as it continued to stand until
changed by tho amendments of 1871,
which declared a procedure in equity
distinct from that Of law.
These amendments Of 1871 were
passed, as it were. under duress, in or
der that our Territorial civil practice as
part of system finding its most author
itative exposition in lis court of last
resort, the Supreme Court of the United
States, might be accommodated to the
clearly announced views OF that ultimate
tribunal. But hardly had tho amend
ments been made before such counter
opinions were rendered in the Supreme
Court aud such counter rafting action
was held in Congress, M have made them
entirely unnecessary the very next legis-
laturc, therefore, repealed them. Uaws
1879
In the repeal, however, as we have al.
ready seen; it did not revive or re-enact
the original phraseology by which it first
indicated its intent TO merge law and
equity in one new all-emhracing juris-
dIction-It simply contented itself with
sententious proclamation. "There
shall be in this Territory hereafter but
one form Of action which shall be
called civil action" and by sweeping
repeating clause, edeCtually precluding
the removal of aay former legislation on
civil practice, planted this present stat
ute as a remedial provision directly upon
,h. anc;ant .tla =, Af hha land
The effect of this proclamation, uu-
qualified by any other provisions Of the
same statute, would not be what has been
contended at the bar. TO retain substan-
tial distinctions between law and equity,
but to abolish all distinctions For as