Year: 1876




too strongly when it says that reform in the
method OF legal proceedings is needed and
needed now To the very able introduction of
the subject by you, wish to add word, hon.
ing that further discussion may give the mat


ter the prominence it deserves, and that some
remedy may be proposed for the evils which


all agree now exist.


In most of the counties in this state actions
are not tired until from one to three years
atter their commencement. In Kennebe ccounty
should say that three years is nearer
the average time than two. L presume that
in nine tenths of the cases actually intended
for trial both parties could be ready with their
witnesses at months notice and would be glad
to dispose of the cases within that time-and
if the cases are not intended for trial the sooner
they are disposed of the better The causes of the
delay are, 1. The negligence and in some cases
dishonesty of the lawyers. q The infrequen-
cy OF tie terms of court. g. The system


which allows defendant without stating any
ground OF defence to compel case to take its


place on the trial docket, and remain there un-


til actually called for trial. T. The system of


legal ictions consisting mainly of the Yeten-


ton of the distinction between the different


forms of action and the plea proper to be used


in each form.


Under this system party seeking the aid Of


the court to obtain compensation for an injury
sustained by him may narrate correctly in his
written application for redress all the facts up


on which he bases his claim to recover but un-


less ne adopts the correct form of action he


may lind himself at the end of an expensive


lawsuit out OF court without hearing upon the


merits of his case. For example in the case


found IN the 5Sth Maine Reports page 506, the


plaintiff correctly stated the contents of a writ


ten agreement entered into by the defendant


and alleged that the defendant had failed TO keen


his agreement, and had thereby damaged the


PLAINTIFF to the amount of two hundred dollars


This the defendant admitted, but said that


the plaintiff had committed most serious and


fatal error, in that he had used the word @debt''


instead of Cease" and called the document


signed by the defendant "writiDg obligatory"


instead OF an agreement. He had brought an


action OF debt instead of assumpsit and there


fore should go out of court without an oppor-


tunlty OF showing the merits Of his case, and


out of court he did go, paying the expense Of


this fruitless farce


In this case, and similar ones are constantly


arising, see Vol. 62 Me. Rep. 236, there was no


question but that the right parties were before


the court and the plaintiff had stated his claim


so clearly that it could by no possibility have


3een misunderstood, and but for the artificial


distlnctl3n in the forms of actions the contro-


versy, Ii any there was, between the parties


could have been decided. But the plaintiff is


not always the sufferer. If one obtains iudg-
ment by fraud and deception, and afterwards


sues lt the defendant ought not to be precluded
Dy any technical reason from showing the


fraud, and yet although he seasonably appears


at court, and files his plea stating that the
Judgment was obtained by fraud he is de-
barred from proving it merely because he says
ne does not owe" the plaintiff anything, in
stead of using the words ''no such record" 1t
may be observed that (if the facts are in his
favor) the allegation that he don't owe is true
while the allegation that the record is not as
the plaintiff allt ges is untrue. Such is the vir-
tue OF talismanic words that if he alleges the
truth he can not prove it, but if he alleges an
untruth he may prove the truth.


1t would certainly seem evident to plain men
that when the parties have informed the court
Oh the facts pertinent to the Case, the mere
choiee of words, or form of expression used, in
80 doing should be deemed OF little importance,
and therefore suggest that our method of pfo-
ceeding in civil actions should be so changed
that plaintiff coming into court should be re-
quired only to state in plain English the facts
upon which he bases his claim, and the defend
ant to state in like manner the facts relied up
on in Defence and that neither shall be preju-
diced by the lack Of windy verbiage, of techni-
cal expressions, or by the failure to set out an
| empty fiction of law.


5. Another impediment in the way of the
| determination of legal controversies within
reasonable time and at a moderate expense is
4 IOuuu III tdSucucSo Will WHICH L06 COQLIOs
| verled facts are stated and the almost impossi-
| bihty of ascertaining the real point 10 issue.
As the pleadings are now usually made up no
| indication is given of the facts which may be
proved at the trial Indeed it is believed that
is no uncOm mon occurrence for the parties to
| go to trial upon the general counts in assump-
| sit, which amount to no more than an allega-
| ton of Indebtedness minus any intimation of
| wherefore, with spondingly general an
| swer denying any Indebtedness. Again in an
II Of fF0u fhn Irt~.x f.
allegations usually untrue, and then trial be-
/ gins in which each party claims title to prop
| erty and when the facts appear in testimony


it is found that there is no disagreement in re-


gard to them, the only question being one of
/ law upon those facts. Had the parties told


their true story upon entering court, no delay
| would have occurred, the expense of witnesses
| saved, though l admit the lawyers would have
missed the opportunity of earning sundry
| ducats. And even had the points of disagree
ment been accurately aascertained much would
have been gained.


think most of the general average de-
fences" are due to the abolition of special
pleading without the substitution of anything
| to take its place.


And this leads US to notice another "loop-
hole upon which an ingenious defendant may
hang his hat"


6. This is the want of any restraint upon
the parties when they make up their pleadings.
III we come to the conclusion that the parties,
upon their entrance into court, should truth
fully narrate the facts upon which they rely
then why should not that narration be under
the isanction of an oath? AT present, while
these facts must at last be proved by testimony
under oath, defendant may, without hardly
the SHADOW OF case, lead party plaintiff
through countless continuanees, and compel
him TO large expense in the preparation for a
trial, merely by sending out a vague intima-
ton or proof held IN reserve. 1t seems to me
that no hardship can result to any one unless it
may be to the party who destitute Of law or
justice seeks to entrap an unwary or timid ad-
versary and either obtain technical advantage
or effect an inequitable compromise.


As parties are now witnesses it can make no
difference to them whether they make oath to
the truth of their statements at one time or an
other, and if it be objected that by this means
parties are compelled to disclose their positions
in advance it may be replied that this is just
the object we are seeking.


| The dockets are blocked with cases when
one OF the parties, usually the defendant, states
his position with all the freedom of q novelist
| and with all the technical accuracy to be found
in the preeedents. At the trial it is true these
fictitious allegations melt away like mirage,
but the great delay and expense Of litigation is
not occasioned by the trial but by the pre-
liminary proceedings. If the plaintiff is COM
PEELED to state his case under oath, and the de-
| fendant to admit the facts so stated or deny
| them under oatn. and if he sets up new facts
| in avoidance to state them under the same
| sanction, it can not be doubted but that three
| fourths of the cases now continued upon our
| dockets for years would disappear at the first
| term for the simple reason that no actual dis
| agreement as to the facts exists, and simulated
points could not be made-while in those ac-
| tualy remaining for trial, the points of dsa-
| greement would be narrowed down and the
| expense of determining them much lessened.
z. 1t can not be doubted but that much of
the litigation over technical points arises from
the method heretofore adopted of patching up
the ancient legal edifice when it should be
either torn down and another built in its place,
| or at any rate so thoroughly repaired and re-
arranged as to become adapted to the wants of
| modern society. Since the formation of the


state no two consecutive legislatures have met
| and dispersed without tinkering the statutes
| relating to legal proceedings. And while
many of their acts have produced beneficial
results it is evident that any attempt TO afford
by legislative enactment any adequate remedy
for the evils all admit to exist will fail The
last five causes of delay and expense have
mentioned demand more time and considera-
tion than ahy legislative committee can devote
to them, and might 60 on and fill your paper
with the enumeration of others


1 can see no way of relief except by the ap-
pointment of acommission to revise the laws
relating to proceedings in court and report the
result of their deliberations to future Legis-
lature. G. II.
A