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and proves, that although executed, it constitutes no good ground of defence. Again we perceive that although this new step is taken, the parties are not yet at isssue. We must yet hear what the defendant will say to the plaintiff's matter of avoidance. His attorney will therefore present his answer to this new fact, and this we call a rejoinder. And as it is not necessary for my purpose, to proceed with the pleadings beyond the rejoinder, I will suppose that in this instance it is of the second class; that is, that it denies the imprisonment. The parties are now at issue on the single fact — imprisonment or no imprisonment. This will fully show that the supposed course of the arbitrator, really embraces, and fully contains, the essence of special pleading. The admirable precision and accuracy with which it searches into the facts of a case, and singles out, and fastens on, the true pivot upon which the whole merits turn, is here strikingly exhibited. The process of pleading has discovered to the tribunal trying the cause, that its whole merits can be fairly and fully decided, and justice administered, by inquiring into the single fact --- did the defendant induce the plaintiff to execute a release of his demand, by unlawfully depriving him of his liberty ? Such is the great utility, the striking simplicity, and the unerring certainty with which special pleading accomplishes its object. And such the view which 1 proposed to submit; of some of the means used by the law to accomplish its end.'
After all, however, the student must not suppose, that when he has become perfectly familiar with the simple principles of special pleadings, as they appear in such a coup d'oeil as the preceding, he has mastered all the difficulties of that celebrated system. It is one thing to understand principles, and to possess the art of applying these principles to practice, is another. For there is a science of special pleading, and also an art of special pleading. The principles of the science are briefly developed in the lecture from which we have just been quoting. The art consists in applying the principles to the actual composition of declarations, pleas, &c. so that your client's arrival at the goal of litigation shall neither be intercepted nor retarded. The delays of the law are a fruitful source of complaint and reproach. Many of them are occasioned by the ignorance of practitioners, who present the facts upon which the rights in question depend, so illogically, that tribunals cannot determine, from what appears, where justice lies. But it is passing pitiful, when a plain man loses a good cause, because his attorney did not know how to avail himself of the facts of his defence, or of his deinand. It is, therefore, with striking propriety, that Littleton says, — it is one of the most honorable, laudable, and profitable things in our law, to have the science of well pleading in actions real and personal;' and that he should counsel the student'especially to employ his courage and care to learn this.' To the art of pleading, a thorough knowledge of the rules of logic, is absolutely indispensable. And if the student has not acquired this much neglected knowledge at school, let him diligently study it, while employed in bis legal course, and be assured that he will find it one of the main elements of his success as a practitioner. A very senseless hue and cry has pursued this noble art, because it has been grossly abused. And the charge has been preferred against it — that it is adverse to the inductive philosophy. Nothing can be wider of the truib.
In the acquisition of knowledge, if Bacon is our only rational guide, Aristotle is still our master in the method of imparting it to others. And let it be constantly borne in mind, that the province of - pleading is, - to communicate to the court, with the greatest possible precision, a knowledge of the very fact or facts which form the basis of the rights of the litigant. How can this be done? Not otherwise, than by the most rigid observance of the rules of logic. But as all the student's labors look to future practice, let bim, while he reads some elementary treatise on pleading — Gould's masterly work, for example — always consult the practical forms reserred to at the bottom of the page. These remarks have been made, because there is a tendency in Professor Mayes's lecture to undervalue the difficulties of special pleading. These are by no means to be contemned, but they lie not in the principles themselves, but in their practical application. Knowledge of the first may be acquired without any great effort, but proficiency in the latter is the meed alone of the most strenuous exertion of minds armed with a thorough mastery of the best method of imparting knowledge.
It may be thought, perhaps, that if this lecture contains an outline of the professor's course, his course may be justly considered as calculated to lead the student into that preposterous
reading which Lord Coke condemns. But he has chosen these two practical subjects merely for the purpose of impressing on his class the great utility of method. I have found,' says he, that those who are now in the study of legal science, are often much perplexed when asked if advantage can be taken of certain errors. And that they are prone to burthen their memories with a number of detached instances, without classification, and have no process of reasoning by which they can come to the proper conclusion. If a question is proposed of a case they have not seen, they are at a stand for want of a rule by which to test the case. This must ever be our condition, so long as we memorize cases, instead of studying principles. Cases are useful; but their greatest use is, that they serve to illustrate principles. If they are read and not resolved into elementary principles, the profit of the reading is not worth the time it occupies. He who is only able to say ita lex scripta est, has not commenced making bimself a lawyer, in any proper sense of the term, even if able to repeat every reported case from the Year Books down to the present day. “Be always ready to give an answer to every man that asketh you a reason, is as necessary to the lawyer as the Christian.'
In fact it is the profound veneration that the common lawyers have been taught to accord to decisions, which has brought the law into contempt, and instigated wits to deny it the rank in the circle of human knowledge to which it is preeminently entitled. But while, on the one hand, this does not really degrade the law, on the other, society is amply compensated for the obloquy to which the law and its professors are obnoxious, in the certainty and uniformity imparted to the rights of the citizen. The object nearest to the heart of any government, ought to be, to govern well, and next, to inspire the governed with confidence that they are free and secure.
The phrase, auxiliary ends, employed in this lecture to denote those indispensable means, which the law employs to attain justice, and to distinguish such, from mere means, may be regarded as an unnecessary addition to our stock of technical language, and not calculated to enlighten the subject. We presume, indeed, that the professor has no particular attachment to the phrase, but those who try it, we venture to say, will encounter the same difficulty that he did, in devising a word or VOL. VIII.-NO. XVIII.
phrase which will express the very important idea which it well enough conveys.
The professor, it is scarcely necessary to remark, does not mean to assert that errors which occur in the use of mere means leading to auxiliary ends, cannot be corrected; but that to correct them, we must put in the exception before the auxiliary end has been reached, and that silence till such end has been attained, is equal to a release of anterior errors.
Thus errors in process must be corrected, if at all, before the object of the process is attained; that is, appearance of the party, and submission to the jurisdiction. So errors in the pleadings, in the evidence, and in the trial, must be pointed out, and set right before the end of these means — knowledge of the facts — has been acquired. For if the facts be once ascertained, without exception taken to the means, the law is wholly indifferent by what means; whether from the party, from incompetent witnesses, by objectionable jurors, or the like.
This article, considered as a review of a single lecture, may be regarded by some as inordinately long. If any apology is due, on that account, to the readers of the Jurist, we hope it will be found in the novelty of the form in which the matter of the lecture is presented; in the utility of the professor's analysis of errors in procedure, and of pleading; in the importance of the institution, where the lecture was delivered, to the west; and in the consideration, that this journal is capable of exercising a salutary influence over the law schools of the country by keeping over them a judicious and liberal supervision.
DIGEST OF RECENT DECISIONS.
Principal Cases in
8 WENDELL'S NEW YORK REPORTS.
ABATEMENT. (Death of one of plaintiffs.) In Maine, the death of one of several
joint plaintiffs, in an action of trespass quare clausum fregit,
does not abate the suit. Haven v. Brown, 7 Greenleaf, 421. ACTION. 1. (Splitting demand.) An account for goods sold, all due, is an
entire demand, incapable of being split up for the purpose of bringing separate suits; and accordingly, where a creditor split up an account into two parts, brought a suit for one part, and was defeated, and subsequently brought a second suit for the residue of his account, on a plea of a former suit, it was held, that the plea should be sustained, and that the plaintiff was not entitled to recover.
Guernsey v. Carver, 8 Wend. 492. 2. (Money paid by compulsion.) Where money has been paid
under such duress or necessity as may give it the character of a payment by compulsion, - such as money paid to liberate a raft of lumber detained in order to exact an illegal toll, – it may
be recovered back. Chase v. Dwinal, 7 Greenleaf, 134. 3. (Surely.) A surety has no right of action against the princi
pal debtor, till he has paid or assumed the debt. Clark v.
Foxcroft, 7 Greenleaf, 348. 4. (Refusing to receive vote.) An action against the moderator
of a parish meeting, for refusing the plaintiff's vote, is maintainable without proof of malice or intent to oppress. Ogsood v.
Bradley, 7 Greenleaf, 411. See Bond, 1; Contract, 5, 18; MASTER AND SERVANT. ACTIONS REAL. 1. (Betterments.) It belongs to the court and not to the jury, to