Omaha daily bee., 1910-02-05
Some Things You Want to Know
Technicalities Of the Law.

guards produce anamolous conditions. For
instance, a highway robber attempts to
hold up a man. He is stabbed by the in
tended victim, who escapes. An officer, in
arresting the highwayman, discovers the
stab wound. It's the best link in the
chain Of evidence and would make the con-
vlction Of the would-be robber certaiu, yet
under legal procedure It is not admissible
as evidence. II the highwayman had been
successful in his attempted holdup, he
would have been searched from head to
foot and this evidence brought out against
him. A jury may resort to any sort OF
tactics to decide e case, even to the flip
ping Of a coin or by drawing straws, and
the court is powerless to invade the jury
room with its questions. But If a peeping
bailiff or an eavesdropping clerk chances
to see or hear something. his tale is COM
petent evidence against the jury.
II a man owes another $4,000 and finally
is able to prevail upon his creditor to
scale down the obligation to $1,000, the
creditor, or his heirs, after having ac-
cepted the 5000, can reconsider the mat
ter and enter suit for the remainder OF
the debt, on the ground that there was no
consideration for the remission of the
balance unpaid. But II a debtor bethinks
hin self to add a rusty nail, q red rose, a
fish hook or some other minute thing. he
complies with the law OF confederation
and the debt is satisfied in full without
recourse
In some states II one man owes another,
pays the debt and then loses his receipt,
he can be forced to pay the money again;
and IL he should afterward find his lost
receipt he cannot compel the creditor to
return the money enormously collected the
second time. The ground upon which the
courts hold that he cannot recover his
money, though he holds two receipts, Is
that there must be an end to litigation.
Thus the creditor may, with the full
knowledge Of the court, retain money that
he unjustly collected through the machin-
cry of that same court.
Sometimes there are judges who dislike
technicalities. Not long ago a New York
Judge was hearing a case Of assault and
battery. The plaintiff had addressed in
sulting language to the defendant while
the latter was out walking with his wife,
and was severely pummelled therefore.
In addressing the jury after the evidence
was in, the Judge said: "If 1 had been out
walking with my wife and the plaintiff
had addressed me in such terms as it Is
not denied he addressed the defendant, 1
would have given him such a beating that
the one he got from the defendant would
have seemed like play in comparison. But,
gentlemen, that is not law. Take the
case" The jury seemed to think it was
law, however, by the character of the YER
dict 1t returned.
In most Of the states the absence of a
will makes the law of inheritance carry out
the natural desire Of man that his prop
erty pass TO his direct descendants, but
sometimes an entire estate or a large part
of 1t is diverted to people Of no blood rela-
ton whatever. Here is a case in point: A
wealthy man died leaving his property to
an only daughter. She died and it de-
scended to her two sons. The one son
married and had a family. The other died
without children and without a will. His
property reverted to his father, who in the
meantime had married again and had
children Of the second wife. Thus was
half of a large estate diverted from its
natural descent to alien hands. plainly
contrary to what naturally would havo
been the will of him who had accumu-
lated 1t.
Laws are often so contradictory in their
terms that 1t is impossible to observe them
all. Sometimes one section Of a statute
prohibits by indirection the very thine
another section specifically requires. A
school law In one state provides that no
school shall be kept open lees than a given
number of days in each year. Yet in the
next paragraph a limit OF taxation is given
which is too low to permit the schools 70
be kept open that long.
Even the greatest Of lawyers have some.
lines been unable to comply with the
very laws they assisted in making. Sam
uel j. Tllden, candidate for president OF
the United States and one of the fore.
most lawyers of his time, wrote his will
in such a way that 1t failed to pass music,
when brought into court. A mere tech.
nicality stood in the way Of the fulfill.
ment Of his dying desire, Many other In.
\ stances of lawyers who made a dlsma.
: failure OF writing their own Wills coult
be cited,
The delays of the law are no less pro.
verbal than the defeats which justice sus.
tains through t~echnlcalities. An Indiana
calf case is an instance Of how litigation
may survive even the cause at issue. Two
farmers became involved in a dispute over
the ownership of a calf. They could moi
settle their differences between themselves
so they took their troubles to court. The
case went from one stage to another.
Meanwhile the calf grew TO maturity and
died. But still the case went on and the
costs became the issue instead of the cali
itself, Years afterward. when the court
Of last resort was reached, 1t was found
that one OF the parties to the suit had
died OF old age before seeing the end OF
the litigation.
Nearly every court in the land is clogged
with business. Especially is this true of
the courts Of appeal. 1t is believed that
over one-third OF the cases that are car
rled from trial courts 20 those Of appeal
are reversed, and in nearly every case
the reversal is on technicalities. This re-
versal OF trial courts has become SO seri-
Gus. in many cases manifestly thwarting
the ends Of simple Justice. that many OF
the higher courts have decided that here.
after, unless It can be shown that sub
standal injustice mas been done by the
verdict OF the trial court. its findings VIII
not be set aside.
ny FREDHRIC ]. HAsEIN.
Tomorrow 49, DHLYCATE