Page:The Green Bag (1889–1914), Volume 21.pdf/113

 94

The Green Bag

there may be more than one matter was to state its constituent facts in lan guage such as the people concerned with really at issue between the parties. it use in the every-day relations of life; Falsehood should be ehminated as well in other words, to perfect the statute of as formalism. We require the sanction the fourth year of George the Second of an oath or affirmation in behalf of and make the pleadings in English courts testimony, and we should require the speak plain English. same solemn sanction for the pleadings. For his constant and untiring efforts As the practice now stands in many of to this end, and for the large measure the states, litigants are put to the of success achieved, the country and burden and expense of proving facts the profession are greatly indebted to which would not be denied if the denial David Dudley Field. But Field himself were required to be under oath. In felt that his work was far from com nearly every case where a general denial pleted. The changes he introduced were is interposed it is in greatest part untrue. not heartily received, and, as before, the Under the Missouri code it does not put old wine was poured into the new in issue the execution of a written instru bottles. The code, it was held, was in ment or the existence of a partnership derogation of the common law, and it or corporation, unless it is supported must be strictly construed; and this in by an oath. But these facts are not face of the fact that the purpose of the more sacred than other facts and a code was to cut up the common law of party should no more be permitted to pleading, root and branch. It was not deny by his pleading than by his testi sufficient to state facts, as the code mony anything which he knows to be contemplated, but there must be a true. Justice should be speedy and in theory of the case, and a mistake as to expensive, and truthful pleading and this was fatal. The spirit of the old simple procedure are most effective formalism survived, and the shades of means to that end. debt and detinue, trover and trespass Where the appeal of a case is allowed were constantly invoked and haunted it should be facilitated in every possible the courts with their ghostly presence. way, but in nearly every state we find Students in our law schools are still an accumulating body of law upon the taught that they cannot plead properly subject of appellate procedure. At the in the new way if they have not mastered same time complaint is made by the the old, and so to fit them for making a judges that the records presented are concise statement of facts in plain Eng largely encumbered with useless matter. lish they are commended to the fantastic But the fact should occasion no sur forms and tragic absurdities of Chitty prise. Elaborate records are a necessary and Tidd rather than to the rudiments consequence of intricate procedure. of English grammar and the simple When there is doubt whether something diction of the English Bible. shall be done in one way or another, it The purpose in pleading should not is, if possible, done in both ways. If be to display expertness in the art, but there is any question whether something to advise the court and the opposing should be included in the record or may party of the contention made. The be excluded, it is included. With us controversy in the interest of justice appeals are sometimes dismissed because should be narrowed as much as may be, it does not appear from the record in the but not necessarily to a single issue, for appellate court that something was done