Legal Reform

Lnst weck wc present ed tome cohsideralions resprcling the Cominon Law, shuwing tlial llie decisions of previous courts ore tho standard for their e'iccèssórs, and t!iur as ;i penerul mie, 1 he Tonner preccdents must bo followed, whuther thpy bc in all cases promoliveof equity nnd justieo, or nat: that in this wnyan -ent diVisions are made lo dcfeat the muU of jusiico by tnaking Common Law eu perior in all cases where t comes i conflict ivitli juUice: and we wcpressed the opinión tlmt Ilias stntoof thinij eliould be roversed, nnd tftol every cartóught lo bc deculod on its own ubstaniial mcits, the court nnd jury boinr governed by the legaj precedent s of for meragcsso for as they were promoiivc ol juptice, nnd no fort her. To day wc siiall thrcnv out somc ihouglits on TUK TiXIl.MCALITIF.S OK ) UK I-AW. By icchnicality we nirnn o word, plirnse, foren of expreszon, or ninnii'T of proceoding in Iho proccssof suits, pecnlitir to legal tntnsactions. It is plain from tliis defmitfnn ilüit all trcliniealities cajnot be entirely Hvoidod. Tiiey ire oomenon to all proitWous, und all urts, ïod Fome are doubt less indisponible in lgal proceodiiii. Uut as it is dcsirable to hjiye the l:nvs by wliich we aro governed underttood as grnerally o pobsible, thcy i-liould be as few, os simple, and as ntelliilile as may be. We will mention a few paints in whicii there ia room for g rea t improvemcnt. 1. The greater part of the barba rous Lat inandFrench phroaes which abonad in the Comnion Lnw, might be banished from legal prsceeoinps without impairinir their porspicnity or definitcrií-ss. Tile Englisli Innguage is surelv copioiis enough to convoy any ideus which tliose who gpeok it moy l.ave occusion to commiitiicate. Ir" such plirnsea os "vuirr dirc" "c bonis non,'' "subpoena duces tecum," "!cm compos mentís,"1 "fieri fucins,'1 &cc. have any exact and definí e meGningr, cannot that meaiunp be e.vptesíed in lhn Ertgitsh lungitagfe? Tho principal u.-e of i inining the antiquated phrase?, so far as vo can f-eo, is to excite a fecliiïj ol veneration for tin? profonnd mi.steries of the law, nnd ihenby, !hronrh the nuinber and comploxily of lts ternis of art, more eflectually secuie to the initialed the monopoly of its practico. 2. AnotherkinJ of unneceseiiTy technicnlities is found in the división of logol proccedngs inlo a largo numher of classes, separated from each other ofton only by immaterial or fanciful distinctioni. Thus, for instance nclions for wrongs respcciing persona! property are divided into replevin, delinue, trover, tress pass, debr, covenant, promise, nssumpsit, action on the case, &c. nnd if the wrong ad ion be selected, however clearly the plnntir? may prove an injiuy sus'ained, he cannot recover, but must submit to tlie loss, ur pay his cost?, and commence anew. Uut admiuing the distinclions to be proper and well founded in themselves, therc ís no nfcesaiiy of lieing the technicalities in tho jijcadings. Nothing more shonld be doemen necessary for obtoining jnetice thon a simple statement of the wrong Bustained, nnd an application to the Court for redreas. The Court is presumed to know all the law npon the subject of tlie grievance complained of, and can specify and enforce that portion of it which will do justice in the premiso?, without liaving the tiile of the action designated by any techrical name.3. Thcre are nlso very numerons and burdensoine technicalitiea in the pleadingsof the Ligher courts, whicl ma y be cnt írely removed. In Q largo majority of enses. he suils are not contested at all: tind after obtainitig the Inngest possible dduy tlie law will a!lov,the do fendant permits judginenl to be entered against him. So that ail the courts do in most cases, ia to givejudgmenl on a demand ichich nohody denies.' Surely there can he r,o very ureent necessity tbr long pleas to prove that wbich 110 oiie calis in qnesiion. Wben a plain nole of hand for f-lü is presented toa justicc for collection, and íío defence is made, the whole matter can be disponed of in te minutes. - Now suppo6e the note reads for $1,000 or #10,000 instead of $10, and j not contested. could it not be disponed of just as ivell, in just as slwrl a lime, wilh jusl as liltle Jonn alitift and just as Uttle expense, as the other? We Bubmit Ihe case to the coiïimon seie of our reiiders. But what are the fucls in relation to üiich suiis? Is not the expensa, delay u nd r.rulixity of tle pleodings increased ten or tweuty (bid? The foilowing statement is from u legislatne report of last winter on Ie gal reform, and being saiictioned by the signalure of Mr. Allen, a thorotighbred lawyer. mny be rogarded as a fair account of the usu al marmer of doing business a. correctly practieed by the profession, und delineated by bne of its practising memberts: "The plaintiffput6 in a written declaralion, and even if if it bc on a plain note of hand, he will be likely to use whnt are cullcd ihe com mon counts, making in all from nve to fiftnen folioa of one hundred words each; and if be uses nothing but the sommpn ooüntj the defendant can get no idea frorn the declaralion what he is eued for. On looking anxiously over the dcclaration to nnswor what he is cailed to answer, he diócovers thnt he is sued for 'monny burrowed,' .'inoncy laid out for Ris use,' 'work and lubor," 'gdafis, wares, and merchnndizc, 'duo on settlement,' &.c. These countsare stated witli great pomp und ceremony of words, and a thnusninl or ten Wiou siind dollard c'aimcd for each. The nmnzed and lerrified defendent goes to n lawyer to find out what tl. is monstrotiB aflair uil iniüui--, but lie can teil him nothing by reading the declaralion, and f he rnust know ho must serve in duo fonn a wriuen notice on the plaintiff for a "btll of parlicularg.'' The bill ofparticulars m a dezen woids gives a!l the neceseory informalion; just what ought to have been done in the iirst instancc, and all that oughl to have been done. For the simplest cause of aclion imaginable, this declaratie is often longer than the Declarntioa of Independence, and after oll, the opposite party cannot find out by it what he is sued for. The Declaratío of Independence contain 13 folios and94 vvctfils, nhd tliese declarutions in the Bimplcst cases often contaiii 15 folios. After getlinjj tho bill of pnrticulars, if the defendant cljoos-e, lie cari iioV plead the general issue, and tlien os tnaiiy ppcciai picas nB iiö likes. Ey the g-pneral isFue lic deniw cvery lliing, but discloses norhing in regard tö the defonce hc mcans 1o make. Tliis, too, is done with n rrrca'. parade of words and cerenionious formTlity. ond lifter all, tlie plniniifTknowa nothing nínoiig a (ho'usand tliings, whatthe defnce will 1h', ut'.l con&equently lm knows not wWt to be prcpnred for. He is obligcd to havo nis iVhnesses and law rcady on a score oí' pbints, iiiid incur the cxprnsc and trouble, II for iiotbinjr ; and Ihe defence at Jast comes up, on i point hecould not liase innticip&tbdi Now, v. hv not make the defendant state di recily and sprciftcally his defence, and under iIip peins and penalties of peijury, that he bclievèd liis defence lo bo true; and then confine the cvidcüce to the point or points staled? For irislnncp, if the defendant mcans to relator liis defence uhat os a indóreer he was not notifisd,' let liim sny so; or that 'the contract wad for gambling or nsury,' or that 'he was compolled to promisc,"' (duress os it is called,) or 'non-performance by the opposite pony1' in some particular, or 'a higlier obligation given for the action aucd on;1 or 'payment.' or for. eign oltochnient,' 'previousiocovery,' 'ilaintiff, an alien enemy,' or 'iemine coverí,' &íc, &tc. If he hos no defence lo make, let him make none; if ho hap, let it be ppocificnlly stated undrr the pnins .-tnd penalties ot' perjury. Al present, any of the above dei'ences imy be made under wlmt is c!led the 'genrrat issue,' without the plnmtifia'e beinc avVaré, previous to the trial, which of them or what the defence wijl be," " A cliënt eued bis actorney in our circuit, for not introdueing some testimony, by which the cliënt ulledged he lost hin case. The dec larution which wup terved on the atiorney contaiued eiglity folios. VVhen tbc thirteen North American colonies sned Great Hri:ain for their ndpendence, and set tbrlh a long list of black ermitic-', vv'liioh t!ipy had endured fwr the last two hundred yearn, they put it all in a declarution of letisthan fourecn folios. If tho Itnpth of a dcchiration is nnv criterion, llii.s cliënt hnd six.timos the number and tnonnity of prievjincps to cowplain of, thai ilie thirteen oldstttes had ogainst our ino:her country, for all her ucis of oppiession and tyrratiny. In this instauce the defendant served as his own aitorney, or the pliiiriff wonld have had as long a plea in return served on him. To have can cd tho suit successively through the circuit, chancery and supreme courts, would have tuken as long as the war of the revolutiou, and ihe plcadings ir ciuding rusiomary copies, wouid iiave been longcr than Goudiich's History of the UniU;d States, from tho first discovcry of Aniericu by Colunibus, down to 1329, including a very good histoiy of two Americun tars." 4. TechnicaÜties aiealso mnde to defcat ihe ends of jittirc hy rrq'iiring very peculiar kinds and amount of proof. More especially is this true of criminal cuses. IIow often do we see tho sheriff and all good ciiizmsin purfeuit of 6ome notoiions ecoundrel, who lives by preying on society. Perchance he is a burglar, or a maker of cotmterfeit coin. The country pnj a bilí of several hundred d.illar.s for his apprehensioü, cf mmitment, ktíeping, indictment (ind trial. He is fully convicted of ;Ijp oiTence to the fu)l Falisfantion of tbc jury and of every budy: nnd just as he is rendy to he condc-mned, the counsel lor the prraunor discovers that some word in the indictment was inaccurate, or some trifling furmnlity bas been neglectod, nnd ti)e whlecase follsthro'. The scoundrel is let liote to prey on pociely agiin, the county pys i'our or fie hundred dolla's for nothing, ond the whole transaction is a complete farce, tending to the prolitonly of thoóe engaged in cnrrying it on, nnd to the i-crcening of iho culprit from punishment. - This farce, be it remembeied, is conslantly ena'cting at the expense of the pevpli", ntid they submit to it from yeur to yenr, becnu;C those who are profurd by it teil them t hut the practife is es ancient os the fourleenth century, or perhaps it is so old that "the memory of man runneth not to the contrary," and must, therefore, without nny doubt, be "the collected wisdom of ages!" We reperve BOttite further remarks under this head till next week.