Page:The Green Bag (1889–1914), Volume 21.pdf/667

 632

The Green Bag

Good; Third Article—The Decline of the Punishing Idea." By Charles Edward Russell. Hampton's, v. 23, p. 609 (Nov.). "Fewer arrests, fewer sentences to prison, better treatment in prison, more of a chance to recover from the once ineradicable curse of the prison sentence, fewer beatings, fewer degradations, gradually a wider recognition of man as man, more decency, more kindness, more respect for the value and possibilities of human life. That is the outlook. It is only a scanty beginning, only a meager promise of what may be, and yet few of us are so constituted that we can regard it unmoved. Most of our prisons are still terrible places." See Juvenile Crime. Pleading. "Judge Gilbert and Illinois Pleading Reform." By Clarke B. Whittier. 4 Illinois Law Review 174 (Oct.). This is an article of such value and im portance as to deserve more than brief notice. The author says:— "Almost everywhere else a demurrer to any pleading opens up the record back to the declaration. But not so in Illinois if a prior demurrer to the declaration has been over ruled. Almost everywhere else a motion in arrest of judgment takes advantage of a declaration defective in substance. Not so in Illinois if the declaration has already been tested by a demurrer. But a motion for judgment non obstante veredicto will accom plish the defendant's object despite the decision on demurrer. Yet a motion in arrest of judgment is the more natural form of motion. And the two motions are really the same except in form. It would seem that when a declaration accuses the defendant of a tortious act the plea of not guilty should raise the question whether the defendant did the act. But it does not always do so in Illinois. If the defendant is alleged to have done the act by means of a railway train, for example, he must specially deny that he was running the train. Yet how could he have done the act if not controlling the agency that immediately accomplished it? More generally one may amend a declaration to make sufficient an incomplete statement of a cause of action. But Illinois cases forbid such a correction. Illinois pleading is not even good common law pleading. . . . "Illinois being then in need of pleading reform, what shall she do? It is the purpose of this paper to propose that she make a real advance on the best that has yet been done. No originality is claimed for the suggestions that follow. Some of them are general law, but not the law of Illinois. Some of them are derived from our American code pleading. Some of them are taken from Eng lish reformed pleading. English reformed pleading, as is commonly known, is much more liberal and flexible than our most advanced code. Some of the following pro posals come from the practice act drafted by Judge Hiram T. Gilbert and presented by him to the state legislature this spring. The

writer's function has been to consider care fully these various possible pleading reforms and to attempt to pick out the best. . . . "What seems to the writer to be the chief object of pleading" is "to notify the parties respectively of the claims or defenses which will be advanced by their opponents and attempted to be proved at the trial. Some thing must do this. The parties cannot go to trial blindfolded as to what they must meet. And it seems that to give this informa tion is the real function of pleading. The following system, then, has been devised with that as the chief end in view." Mr. Whittier's proposed reform of pleading includes the following as some of its chief features: the abolition of all distinctions between proceedings at law and in equity, the abolition of distinctions between the forms of action, the requirement that the pleadings instead of stating the material facts constituting the cause of action shall merely be notices to the opposing party of the cause of action in as few words as possible, the right to include conclusions of fact or of law, the use of the demurrer solely to throw out pleadings which do not set up a legal cause of action or defense, and the right of the court to control the course of the pleadings of its own motion and compel the filing of pleadings of such a nature as to inform the court of the general nature of the causes of action or defenses intended to be relied upon. Mr. Whittier's suggestions are presented in lucid form in numbered sections, with clearly reasoned intervening discussion. He disclaims any idea of offering the text of a proposed act, modestly declaring that more care should be exercised in framing his proposals. But he has made an important contribution to the study of needed reforms in procedure, and his draft shows a wide familiarity with the technique of practice and admirable qualifications for the drafting of an appropriate act. "Simplification in Procedure." Editorial. 15 Virginia Law Register 486 (Oct.). "Our English brethren have solved the question of pleading—that is, of the pre liminary steps to get a case before the court for trial upon its merits—by their Practice Act, which practically abolishes all technicali ties in pleading and allows such ready and prompt amendment to defective papers that there is no excuse for delay, and no reason for postponement. The combatants—to use the language of the ring—are stripped and ready for the combat under the present rigime in less time than it took an old-fashioned pleader to get to a rejoinder. We need that act—or a similar one—in our business in this state, and it is coming." "Pleading Special Contract and Quantum Meruit." By G. I. Woolley. 19 Bench and Bar 12 (Oct.). A discussion of the subject examined under New York Code provisions.