Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1897-02-11

claim that apology for existence. for the
summons is but repetition of the COM
mand to appear In the writ. and the right
to insert the declaration in the writ has
robbed the summons even or US iraal-
tionary significance. All defendants'
whether corporations or tnelr empIeey w
should receive early and full notice OF - she
cause of action asserted by the plaintiH.
In cases where service is but formal. l
can see no reason why 1t shouid De nee
essary to serve preliminary process Dy an
officer. Such is not the practice in Eng
land or IN the code states. Service can pe
made and proven by the affidavit OF conn-
sci as well as by sheriff or town con,
stable. The laws of other states abound
in precedents to regulate such service.
with economy and simplicity. The DAY
has long since passed when defendants
are to be terrorized by the august pres
ence of deputy sheriff. The change Is
neither new nor radical.
| hesitate somewhat to recommend
sweeping changes in the forms OF action;
But. seriously. ask you does any good
reason exist why the common law should
lag SO far behind equity in the simplicity
of its initial procedure? Whatever the
dened with no technical rules that re-
quire us to sub-divde justice into vari-
Gus forms. The grievance Is stated TO
the court in the same plain. clear Eng
lish that We use in the affairs OF ire.
Addressed only to the court. It's require.
ments are the simplest. Called to deal
with the unframed minds OF the Jury. we
state the grievance in an action at law III
language so tortuOus and un-Engiish that
neither jury nor counsel fully under
stand its meaning. In preparation Tor the
bar, and in later years, We spend Valu-
able time over the important question or
deciding whether cause of action shail
be denominated. assumpsit. troVer. deot
or. case. Illustrate with trover II IS
hardly becoming the dignity of PROBES
sion devoted to establishing the truth TO
suffer the existence of declaration that
befogs a jury with the idle fiction that
the plaintiff lost his goods and the e
PENDANT found them. The words remain
A monument to the ingenuity of the an
cient judge that devised them. He sleeps
in the grave of his fathers; our present
duty is the living. not to the unknown
dead
When the black letter knowledge of
special pleading went down. with 1t Went
the last excuse for retaining these Narl-
Gus forms of action. Far better that we
spend valuable time in studying prin-
cipeS of law than i'm mastering the tech
niuue of a system of pleading that long
since ceased to have any practical
| utility.
| With these refinements as 10 the form
of action necessarily would go the mean.
ngless iargon OF the various general
issues. Non assumpsit, nil debet. non est
factum. null tiel record, bad Latin and
worse French. they lack even the graces
tongues of ancient Rome and cultured
| Greece | believe the lawyer can there
| find rich wells of philosophy and of law.
fuI to the 9verfoT,ns , NTH hrafti ia.
practice of law should be conducted In
our grand, old mother tongue.
| In law. as we'll as in equity. the plaintiff
| should state his complaint in language 81
| clear and plain. that the defendant when
sued; and the jury at the trial. should
know precisely and intelliSently the con
| tention of the parties. The plaintiff. In
law as well as now in equity. should be-
| entitled to an answer specifically assert
ing the defence. While We are. supposed
| to monopoliZe the knowledge of law. tho
plea of mon assumpSit or nil debet
| does not always convey even TO our en-
| lightened minds the full significance OF
| the defence.
| To codify procedure to make the prac
tice of law so plain. that no sutton need
suffer because of techncalities is neither
new nor revolution. The great success
of the English Practice Act is sufficient
| answer to such criticism.
| When ] came to the bar 20 years ago
the art of equity pleading was SO complex
that we looked with awe upon practi
The act of 1881 made the practice SO sim
Pile that to draft a bill in equity is far
easier than to devise a good declaration
in an action on the case. The larger
practice is at law.
| We have been approaching this chang
| with hating steps. Out of patience with
the refined distinctions between trespass
| and trespass on the case, the statute has
declared Il declaration in either form to
be good. The artificial reasoning OF
special pleading led to the present imper-
| ing the whole matter into chaos. The
| Law and Equity Act of 1891 allowins;
| equitable defenses to be pleaded in ac-
| tons at law and permitting actions at
| law to be transformed to complaints in
equity. and vice versa. has gone so far
and introduced such confusion in our
practice. that the time is ripe to level all
distinctions between the various forms OF
| actions at law. and to provide that ali
causes. whether at law or in equity. shall
be begun by complaint with a prayer for
such legal or equitable relief as the ma :
ture of the case may require.
| am conscious that [ probably stand
I with minority in these positions. But
discussion today may, if | am right. be-
| move these impediments to the prompt
administration of justice. l have come
to these conclusions through the slow
mistaken votes that | gave years ago
when | was here trying to make law at
an age when ! should have been learning
opposing the grounds now take. Hence
you will understand that l have been
slow to be convinced. ! would today
guard the common law and its admins
tration from demagogism and agrari-
ansm in every form. | believe that stat
utes should be charged with great eau
ton and extreme conservatism. Property
and personal rights are too sacred to be
the subject of poorly considered expert
ments. But the methods of practice can
be safely changed along lines that have
been adopted and successfully used in
England and in so many of our sister
states.
Following the address came the cleo
ton of officers. For that purpose, a
committee was appointed of the fol-
lowing members to make nominations:
Messrs. l.. 7. Carleton of Winthrop;
f.. c. Rider of Bangor: A. F. Fellows
of Bucksport: w. E. Parsons of Fox
croft. and S. J. Walton of Skowhegan.
Judge J. w. Mitchell as chairman
of the committee appointed at the last
meeting to make a report as to the ad-
visibility Of having the admission of
members to the bar in Maine subject
to examination by State board,
stated that no definite action had been
made, fand special committe was
appointed by the Chair to investigate
the matter, and report at the next
meeting whatever might seem ad-
visable. s+
The following committee was APP
POINTED for this purpose: Judge
Mitchell of Auburn; Hon. c. F. Libby