The Barre daily times. (Barre, Vt.) 1897-1959, 1917-01-03

W. Hc iothcio pulilsneu IL WIN whipping
not exceeding one hundred stripes, i'm
prisonment not exceeding seven years
fine not exceeding three hundred dollars
and assignment to service. We hay'
omitted the stripes and the service as
signment, but increase the Imprisonment
to not exceeding ten years and the fine
: to not exceeding one thousand dollars
for the first offense. For the second OF
Tense the fathers increased the imprison
ment to a possible ten years and LETT
the other punishments the same. we
punish the second offense with not ex'
ceeding fifteen years Imprisonment and
a fine OF not exceeding fifteen hundred
dollars. Our penalty for the first OIL
Tense equals that imposed for the great
est larceny of property that may be lar
more concealable than horse, and the
second offense may be punished more Sc
verely than any grand larceny. Certain
lily this statute does not show any i'm
|provement in spite of all legislation. 1t
is neither logical nor harmonious with
the rest of our code.
"The morality of the two periods we
are considering, as shown by the crimi-
nal laws, is much the same. There are
a few noticeable differences. We allow
no lotteries, while our forefathers for
babe private lotteries, but licensed some
for public, charitable or religious pur-
poses, In the earlier days an innkeeper,
or the keeper of house of public enter
tainment, was fined for keeping cards,
dice, bowls, shuttle boards or billiards on
his premises, but was permitted TO fill his
guests with New England rum to the
point of oyerfowing There were then
practically no health laws nor statutes
Regulating certain professions, trades, or
employments, while we have become con-
sderably paternalistic in such matters
and will probably become more so in
the future. Attempts have already been
made that would almost go to the ex-
tent of forbdding a man to brew a cup
of tea for his own ailment without
doctors prescription.
1--WE have made some changes in le-
gal procedure, but our fathers were alive
to the objections to impeding technicall-
ties. Many OF our statutes OF amend
ments and ieofails date back to an carly
period and on the whole our legal pro-
cedure has had comparatively few
technical letters. The writ OF review
has been abolished and the writ of error
is obsolete in practice Our courts have
always been liberal in allowing amend
ments anu common law pleadings have
been of the simpler kind. The statute
permitting notice under the general issue
is one Of our earliest and no pleader
could ask for more simple method OF
stating his defense. Our common law
declarations of general assumpsit, trover
and trespass can never be simplified by
any substitutons. The more we study
the matter the more we are convinced
that the evils Of the common law plead
ings were more a matter OF delusion |
with the public than they were snares
TO the litigant.
"The attempt OF legislatures to inter
fere with and speed up the machinery of
legal procedure have not as a rule been |
successful The most conspicuous of
these attempts, which has been followed
by number of states, was made by the |
state Of New York in ls4s. Some of the
best talent Of that day and perhaps, the
equal of that OF any day, was employed.
The result was code of 400 sections, a
model of expression and OF intended COM
To-day we can hardly
admire ii for the reason given by Bridget
for admiring the armless statue of We
nus. because it was easy to doost.' 1t is
no longer a statue of few members and
smooth surface over which the brush
moves easily The legislatures of 6s
Years have been busy making alterations
md additions until it's chief author, Mr..
Field, if he were alive, would not recog-
lize his handiwork. II has grown from
our hundred (400) to thirty three hun
lred $4,000 sections and has become so
and obstructive that it is I
low proposed to repeal it and substitute
curt rules.
"Our last legislature passed an act to
implify pleadings. In some respects ,
hat was done which ought to have been |
lone long ago. One summons to court is /:
II that party is fairly entitled to, t
whether The cause of action sounds in {
ontract tort or equity. Once in court. :
he cause OF action should be stated and
trial on the merits had.
"But we cannot abolish things by eras- s
ne their names. nor can we consolidate {
INSTANCES by giving them a new termi- ]
ology. Trespass is still trespass; trover i
till troyer; deceit still deceit; and negli S
ence still negligence. though you apply O
D them the single term tort instead of e
he specific names by which they have b
cen SO long known. t
"A generic name cannot simplify that p
-hich is complex. By calling all of the +
on his farm, animals, farmer /
,nnot change fowls into hogs, nor cows e
ito horses. BY no legislative fiat can e
on state a battery and trover in the d
lme words To say that man struck
on is not stating that he found your o
nrse and appropriated it. No legisla- t
ire can save us the task of clear and fl
rderly statement of cause of action. Il
o court can give fair trial to party v
no is not fairly informed of the charge O
yainst him. S
$50 far as the new act does away with W
,ecial pleas or leaves their use optional, Ia
is commendable. But does it go much
rther in a ma iority of cases than the al
d act that permitted the use of the Of
neral issue with notice. II probably 81
res so far as common law, special pleas o.
Id replications are concerned. The pro- al
sion for the transfer of a cause from ~
W TO ehsncery. and the reverse, will T
We the cost and delay of a new suns ia
ons, but creates the necessity of hear W
z on the question of transfeTability e1
ID will usually, If not invariably, re III
lire new pleadings and consequent de- pr
! L.