The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1890-01-02

| defenae. unless il amounted onIy to DE-
nlal OF the facts set forth in the complaint.
II the provisions ab0vs referred TO lies
tie whole force Of the reform. They srs
/ mentioned here not wifh the idea thar they
are unfamiliar 10 the lawyer. but to FL
/ hfbit clearly the storm center Of fke
revolution which was affected b. the
+ adoption Of the code Bevond these few
/ sections there Is hftle besides provisions
/ for gpFing them their proper effect, unless
re except those sAlufary changes in rules
OF evissencs which are rather = collateral
Development than part OF the code more
meat
The foregoing Is sucrinct presentation
Of the simple process BY whieh : change,
profoundly affecting the interests Of tFo
empires. was brought about. Il is tTae
that the lawyers--always conservative
we're generally opposed 20 the change and
il IS true, also, that the judges generally
the most conservative OF the lawyers
hung en- to the old forms and fictions as
long as possible and Ter Z time Gid al they
could IN conscience to reduce the force Of
the change to minimum By "construing'
ont OF the code Enuch of what the legisla-
ture had put into il. Ii Is true, even as
Mr.. Pomeroy saws in bis great book on
legal remedies, that tAe reform has thus
been prevented, In some respects. from
having its full and legitimate effect and
thai by 20 much as it has failed By so
mach has the administration q justice
suffered. Nevertheless, the spirit and
naafhod of the code ard which / believe
TO be q return 20 the spirit and method Of
the ancient common iaw-has practically
prevailed, and does more etfectuaiiy pre-
vail as time proves its value. But has per
lection been attaineds Is no further i'm
provement possible?
suppose | might assume that the law
yeFs are as conservative as ever and viii
hesitate 70 indorse any proposition that
contempiates q departure from these ac-
eustoIned ways, but ! know can assume
that they viii endeavor TO Judge fairly.
And now / ask them to say If there is any
reason for the rules OF practice by which
they MAKE a motion to strike out q part OF
q pleading as frivolous or irrelevant and
another motion 20 require q pleading TO
be made more definite and certain, and
then, when q week has been consumed in
each OF these motions. demur TO the COM
plant and find ii necessary to discuss, in
presenting the demurrer, some or all OF the
same questions that were involved in the
motions, or, after puzzling their wits and
cudgeiing their brains 70 determine whefh-
err particular defect falls within that class
which may be reached By Q motion or that
which must be met by demurrer, have
the court decide that the demurrer they
have fled is wrong because the matter is
one that should be met by motion, and
then that the proper motion cannot be
made because it was not interposed prior
70 the demurrer? There is much unneces-
sary labor and much consumption OF time
in all this, and there is sometimes actual
injustice produced by IT, Are there any
compromising advantages7 II there are
any what are they2
Would Ii not be a saving of time and
labor TO attorneys and judges. and some
times. also, Of money to suitors. and help
toward getting directly at the merits OF
causes, If the practice act were so changed
that al objections on account OF defects
appearing on the face of pleadings could
be made at one and the same time and cor
rected together instead Of by piecemealY
II not, why not7
In nsandamas, and the Ike, Is there any
logical reason why the recitals of fact in
the writ should be the basis OF all future
proceedingsg or why. In fact, there should
be any recItals Of fact in the writ, making
il long. tedious repetition of previous
complaint, adding labor and consuming
time and often leading 70 truitless wrang-
ling9 / see no good reason for making
these cases exceptional In some OF the
states this needless machinery is abolished.
and the complaint is to be answered in
cases OF this sort in the same manner as in
others II should be so in Washington, or
else the lawyers, who must be held respon-
sible Tor the code OF procedure, should
''Show cause"
In numerous class Of cases arising from
wrongs that do not involve the breach of
any contract--cases of tort-a curious relic
os ancient legal scholastcism is stiI pre-
served in, believe, all the states. namely
that the injured party, instead of stating
"the facts constituting bis cause OF action.
may make fictitious allegation that there
was contract. and. hasing his suit on the
idea OF eontraetual relations, may then pro-
coed 10 prove the allegation by evidence
that there was not a contract at all, but
that there was violent outrage or felony
committed upon him. or that the injury he
has sustained is the result Of an innocent
mistake OF the adverse party. By this nc
ton the rights OF tae parties are sometimes
very materially affected. Two. at least, OF
the standard law writer's have inveighed
against this IS = violation OF the letter and
spirit Of the reformed practice bat ihe hal
wark OF mgsty precedent has. thus far,
proved toe strong for their batteries. Such
absurditiss ought 70 have no place in jusls-
prudence The science which boasts that
il IS the perfection of reason" should IT
lesss erase 10 furnish such illustrations of
unreasoninc adherence 10 bad precedent as
have been fnstapced above. but the fact IS.
these are but a tew examples. oat OF very
many that might be cited. OF matters
wherein the reform has stopped short Of It's
legitimate foree and intention. Very re-
specttullY, MALcoIM F8AgEg-
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