ง The Albany Law Journal. ALBANY, NOVEMBER 2, 1872. THE BOOK OF FORMS. On the 30th day of March, 1861, the commissioners of the Code, pursuant to the thirteenth section of the act to amend the Code of Procedure, passed April 16, 1860, reported to the legislature of this State a set of forms adapted to the necessities of the practice under the Code. The section of the chapter referred to, under which the commissioners proceeded, is as follows: "SEC. 13. The commissioners of the Code, appointed by the act of April 6, 1857, are hereby authorized and requested to prepare and publish, in the same manner as their reports, a book of forms adapted to the Code of Procedure, and the forms thus published shall be submitted to the next legislature." The duties devolving upon the commissioners under the above have been performed, and the results of their labors, contained in the book of forms, are on file in the office of the secretary of state, certified by the surviving commissioner, Mr. David Dudley Field. Efforts have been made by individuals interested in the cause of legal reform, which has thus far met such admirable success in our State, to induce the legislature to carry out and give a fair trial to the project set on foot as above, but they have proved ineffectual. The work of the commissioners was efficiently and promptly completed. The forms, submitted to the judgment of some of the ablest and most experienced lawyers in the community, have, in each instance, been approved as a practical, working fulfillment of the intent of the legislative department. No better or more satisfactory commentary upon their fitness for the functions proposed can be demanded than the fact that they have been constantly employed in the office of Mr. Field, the most accurate, impregnable and scientific of practitioners, and have been found to be commensurate in their capacity with the requirements of the great, varied and intricate business flowing through his chambers. Such a certificate of available usefulness as that ought to render them, of itself, canonical. The same dilatory spirit and lack of energy have been displayed in this matter by our legislators that have marked their treatment of all the productions of our codifiers, appointed by them, save that portion comprehended in the Code of Procedure. Energy and promise of firmness in a good cause have given way to lassitude and indecorous neglect of great duties. A strange inconsistency of action, or, more accurately, inaction, unworthy the dignity and honesty to self of a great commonwealth, has interfered in New York with the progress of the work of codification so energetically commenced, and of which the adopted portion has worked such beneficent results, Judge Black to the contrary notwithstanding. The strictures of that great jurist, and vigorous, sarcastic, well-armed writer, contained in his famous article upon "A great law suit and a Field fight," published in the March number of the Galaxy, upon our system of jurisprudence, though severe and scathing in the extreme, were, to some extent, merited. Among other things, bitter as the acids, he says, in speaking of the spirit of legal reform, which the stinging invective of restless Brougham, and the more ponderous cannonading of Jeremy Bentham, with the troops of light horse they enlisted, had awakened both in England and America. "In New York, where this feeling was strongest, the revolutionary party did itself honor by accepting the leadership of the ablest and most distinguished jurists of the State. A full Code, as comprehensive as that of Napoleon, and as minute in its details as that of Livingston, was the work of their hands. They laid it at the feet of the legislature, and that body adopted the Code of Procedure, but rejected all else that was proposed." "The Code actually prepared by Mr. Field and the commission he headed has not had a trial in New York. When a portion of it was torn from its context and united with a mutilated part of the common law, the symmetry of both was destroyed, and confusion became inevitable. The legislature, when they abolished the old forms of pleading, rejected the new forms with which Mr. Field proposed to supply their place; these latter were scientific and logical, and would have saved much of the evil resulting from the want of them. It was the experiment, which has always failed, of putting new wine into old bottles." Judge Black, like most luminaries which shine by the reflected light of the common-law system of procedure which they adore, as well as by their own genius, and who flourish amid the "exquisite logic which for ages has been crystallizing into the forms of pleading," grows splenetic and waxes furious whenever he contemplates the iconoclastic tendencies of New York lawyers, but on this occasion his remarks as quoted are just. If we have set forth upon a path of reform which promises to lead to pleasant pastures, why halt on middle and debatable ground. It is neither just to ourselves to permit our system to fall into illrepute, when we have not exhausted a tithe of our expedients to protect its honor, nor is it manly to cast a waif upon the waters of the world unaided when we can as well defend it. England, with the ponderous enginery of her legislature, wherein wheels revolve but slowly, and struggling amid the tortuous shades of circumlocution offices, progresses steadily with the work she has taken in hand in the way of legal reform. Other States, wherein the work was commenced with far less eclat than with us, have already outstripped New York in the race and placed her in an unenviable light before the world. Side by side with the civil, criminal, penal and political Codes has reposed the book of forms ever since the next session which convenes at Albany. A little careful attention on the part of the judiciary committees, composed, as they usually are, of the ablest legal gentlemen in either house, cannot fail to discover whether there be enough apparent virtue in the book of forms to warrant its trial under sanction of a legislative enactment. Let the matter be disposed of in some manner or another. Nothing is gained by delay; and if there are benefits to be derived from the enactment of the work of the commissioners, why deprive the profession and the community from them longer. It is not proposed to render the employment of these forms compulsory; the act which is to give them the desired vitality is simply enabling. The great object in enacting them is not to establish a code of forms which every one must use or fail in his proceedings; but, on the other hand, one that he may use and be safe. Prolixity, a lack of system, a want of uniformity in precedent, a medley of dissimilar means to effect a similar result in similar cases, uncertainty and laxity, are all evils to be avoided, and evils that may be avoided by carrying out the intent of the legislature in this matter. The price to be paid is a slight one for all the gains which may result, for all the advantages which, reasoning from even the least favorable premises, are likely to accrue. We have forsaken beaten paths. The light of a better and more generous age has led us as a nation and a State into ways which go far toward a perfect system of its completion, growing dusty and yellow with age, while nine-tenths of our population have forgotten its very existence, or even that it was ever contemplated. This is the acme in a rapidly ascending scale of injustice. The fact that four important divisions of our codal system have been passed by in silent contempt, furnishes no sufficient premises whence to deduce a valid reason for treating this most important supplement to the fifth in the same exquisitely cold-shouldered manner. Nero fiddled, tradition saith, while Rome burned, but his musical enthusiasm on that distinguished occasion has never been considered, however excellent his performances were, in an artistic sense, a proper example of instrumentalization for succeeding monarchs to follow. The intent of the legislature in authorizing and requesting the preparation of the forms in question is clear. A Code, consisting of fixed, definite rules for governing the conduct of civil proceedings in our courts of justice, had been established and put into successful operation. The fundamental canons of practice were no longer scattered throughout the multitudinous volumes of reports and the works of legal writers but had been gathered and condensed with admirable skill and wondrous forethought into one systematic, homogeneous body, definite, tangible, elastic. Yet the system did not seem perfectly rounded and symmetrical, while the forms to be employed under it were unresolved into a kindred and accompanying body, but left subjected to the caprices of courts and practitioners. Therefore the legislature directed the prep-government, far toward a perfect method of adminisaration of a safe, certain and sufficiently flexible Code of forms, to render, in a greater measure, the practice certain and definite. Properly understood and defined, the great objective points to which all reform in judicial procedure tends, are celerity in properly disposing of the issues at bar between litigants, and economy inuring both to the State which fosters the court and the parties who oppose each other in the forum of justice. After "the weightier matters of the law" have been disposed of, the arrangement of the great principles and rules of practice in their proper order and bearings, there are no means by which the ends to which allusion has been made above, can be more speedily and certainly attained than by rendering certain the forms wherein we are to proceed, the rails, in fact, along which the triumphal car of justice moves. To an extent, the forms of proceeding must vary, per necessitatem, with the facts of each individual case, yet a legal framework can be established in nearly every proceeding before a court which may be clothed with the facts to be brought to judicial notice, and intended to produce a given effect under given circumstances. This the commissioners aimed to effect. How well they have done their work is, of course, aside from the practical experience of Mr. Field and the opinions of able lawyers, a question as yet undecided. Let us have the matter disposed of by tering laws, far toward a perfect method of dispensing in our courts that justice which proceeds from the State to its meanest member. Here, in New York, we have taken up a burden which cannot be thrown down with honor. An enlightened habit of thought, and a lofty civilization have made our lawyers and legislators the chosen apostles in a work which no commendation can ennoble and no scoffers bring into disrepute; a work which must proceed to a successful and desirable result, even if with no other aid than its own innate principles of right and necessity, the work of legal reform. The matter to which we have thus called attention is of no slight account and deserves immediate attention. NON EXPERTS ON QUESTIONS OF SANITY. The doctrine of stare decisis, of great value in most cases, sometimes results unfortunately, as where the court of some State decides an important legal question directly contrary to the uniform current of authorities, because it has so decided it on some pre| vious occasion. An illustration of this may be found in the case of State v. Pike, 49 N. H. 399, wherein it was held, that the opinion of a witness, not an expert, as to the sanity of a person, is incompetent although formed from observation of that person's appearance and conduct. The court disposed of this question thus briefly: "A majority of the court are not disposed to overrule the very recent decision in Boardman v. Woodman, 47 N. H. 120, that witnesses who are not experts cannot give their opinions on the ques tion of sanity." But Mr. Justice Doe, not content with this disposition, delivered an elaborate dissenting opinion, showing conclusively that New Hampshire was almost alone in this holding. On a question of this importance, and one depending entirely on the principles of the common law, it is most desirable that the rule should be uniform, and that the individual opinions of one set of judges should yield, as they ought to yield, to the concurrent opinions of the judicial world. It has been the uniform rule in England to admit the evidence of non experts on questions of sanity, not, of course, on the general question, but to characterize, as rational or irrational, the conduct and acts of a person that have. come within their own observation, and to which they testify. The authorities are too numerous to cite here, but we will refer to Wright v. Tatham, 5 Cl. & Fin. 670. An this country the courts have held this evidence competent, with almost as much uniformity. Among the cases so holding are Cram v. Cram, 33 Vt. 499; Cavendish v. Troy, 41 id. 99, 108; Dunham's Appeal, 27 Conn. 192; Clapp v. Fullerton, 34 N. Y. 190; Den v. Gibbons, 2 Zab. 117; Bricker v. Lightner, 40 Pa. St. 199; Roe v. Taylor, 45 Ill. 485; Beaubein v. Cicotle, 12 Mich. 459, and many others which may be found in the opinion of Mr. Justice Roe. y In opposition to all this current of authority are the courts of Maine, New Hampshire, Massachusetts and Texas. How much weight these counter-decisions are entitled to is very clearly pointed out in the dissenting opinion to which we have referred, and we extract that portion of it: So far as the history of the law, on this subject, has been brought to the notice of this court, the first time the competency of this evidence was doubted was in the jury trial of a probate case at Cambridge, Mass., in 1807. The only account we have of that affair is the report of Mr. Tyng, who says, that the court permitted the subscribing witnesses to the will to give their opinions of the sanity of the testator, and that "other witnesses were allowed to testify to the appearance of the testator, and to any particular facts from which the state of his mind might be inferred, but not to testify merely their opinion or judgment." Poole v. Richardson, 3 Mass. 330. From the conspicuous and emphatic use of the word "merely," and from what occurred in subsequent Massachusetts cases, there is reason to suspect that the only point ruled in this case was, that the witnesses were allowed to give their opinions when they stated the particular facts from which the state of the testator's mind was inferred by them, "but not to testify merely their opinion or judgment." They "were allowed to testify to the appearance of the testator;" and they could not do that without giving their opinions. It was a ruling made hastily and probably instantaneously, without argument, during a trial before a jury, at a time when the hurry of clearing the crowded dockets of Massachusetts gave no opportunity for deliberation. If the court had been aware that this ruling overturned all the authorities and the uniform practice of England and America from the beginning of the common law to that day, it is not to be presumed that the ruling would have been made without a formal opinion reduced to writing by some member of the court, formally delivered, and formally reported, giving some reason for the innovation. If they had been conscious of the novel and revolutionary character of the precedent, they would not have introduced it so summarily and inconsiderately. This was not the only mistake made at nisi prius. In the previous month, in the trial of another probate case, when the only issue was upon the sanity of a testator, and the formal execution of the will was therefore not in question, the court refused to allow two of the subscribing witnesses of the will to testify because the third witness was not produced.. Chase v. Lincoln, 3 Mass. 236. Nor are these the only peculiarities in the precedents of that State. At the trial of another probate case, the physicians who attended the testatrix in her last sickness, were asked whether in their opinion she was sane. Objection was made to the competency of any opinion. The court ruled that the attending physicians might give their opinions, but must state the particular circumstances or symptoms from which they drew their conclusions. Hathorn v. King, 8 Mass. 371. And in Dickinson v. Barber, 9 id. 225, it was held, on that ground, that certain depositions of physicians had been rightly excluded. In Com. v. Rich, 14 Gray, 335, 337, it was held, as matter of law, that a physician of thirty years' practice, who testified that he had made the subject of mental disease a study but not a special study, and had had the usual experience of practicing physicians, on the subject, could not be questioned upon a hypothetical case stated in the usual manner. These cases show a peculiar and exceptional system of practice on these subjects, which has never prevailed in this State. In Buckminster v. Perry, 4 Mass. 593, "two or three witnesses were of opinion that the testator was much broken and very forgetful about the time the will was made." Instead of rejecting this evidence, the court charged the jury "that the evidence given by the appellants to invalidate the will deserved but little consideration." In Needham v. Ide, 5 Pick. 510, the jury were instructed that the "mere opinions of other witnesses" than those who subscribed the will an inherited peculiarity for which no one is responsible. Its position as an authority was not materially strengthened by the division of the State. In Gehrke v. State, 13 Texas, 568, it was summarily held, without any citation of authority or consideration of principle, that it would have been improper to receive as evidence the vague, indefinite expression of a witness, that the prisoner looked like, or acted as, an insane person. asked;" objection was not made to their opinions; their opinions were not rejected at the time they were given, nor absolutely excluded from the consideration of the jury by the charge of the court. But in Com. v. Wilson, 1 Gray, 337, 339, at nisi prius, in Hubbell v. Bissell, 2 Allen, 196, 200, by a dictum, and in Com. v Fairbanks, 2 id. 511 in a per curiam decision, it was held, that the incompetency of the opinions of non experts was not an open question in Massachusetts. The court merely refused to in-Thus stand the precedents of other jurisdictions at vestigate the question. In this abrupt and unsatisfactory manner, without any consideration from first to last, has this exception become established in that State. Of the four judges reported as present at the October term, 1807, at Cambridge, we do not know who were present at the trial of Poole v. Richardson. The next year, at Cambridge, when Ch. J. Parsons charged the jury in Buckminster v. Perry, witnesses were allowed to testify that in their opinion "the testator was much broken and very forgetful;" and this evidence was not excluded from the consideration of the jury. In Needham v. Ide, no opinion of the court is reported; but the reporter says that the court overruled an objection taken to the instruction given to the jury that the mere opinions were not entitled to any weight further than they were supported by the facts and circumstances proved on the trial." After that, at nisi prius, and in a dictum, and in a per curiam decision, the court held themselves concluded by their own precedents. The only judge in Massachusetts who appears to have deliberated on the subject, gave his judgment against the peculiar practice of that State. In Baxter v. Abbott, 7 Gray, 71, 79, Judge Thomas says: "All lawyers know how difficult it is to try issues of sanity with the restrictions as to matters of opinion already existing; how hard it is to make witnesses distinguish between matters of fact and opinion on this subject; between the conduct and traits of character they observe, and the impression which that conduct and those traits create, or the mental conclusion to which they lead the mind of the observer. If it were a new question I should be disposed to allow every witness to give his opinion, subject to cross-examination, upon the reasons upon which it is based, his degree of intelligence and his means of observation." The counties of Massachusetts, which became the State of Maine thirteen years after the exception was introduced in Poole v. Richardson, did not abandon their practice on that point, as they did not abandon the general system of practice which had grown up with them while they were a part of Massachusetts. For thirteen years the exception had the same authority, and was administered by the same court, in Essex and in York. As it was never examined in Massachusetts on the south, so it has never been examined in Massachusetts on the east. Ware v. Ware, 8 Greenl. 42, 54, 55, 56; Wyman v. Gould, 47 Me. 159. It is equally regarded in both as present, so far as they have been brought to the notice of this court; Massachusetts, Maine and Texas on one side; the rest on the other; and no attempt in either of the three States to justify their peculiar exception. If this amounts to a conflict among the authorities, it must be regarded as inconsiderable. 1 CURRENT TOPICS. The committee of the Chicago Law Institute have just made their report, and from it we learn that the most gratifying progress has been made toward the restoration of their library. About two thousand volumes have been thus far gathered, some of them exceedingly rare and valuable. The committee say that the first response to their appeal came "cordial and cheering from the governor of New York," who forwarded, on behalf of the State, about five hundred volumes of reports and statutes of the State. Connecticut, Ohio, and many of the other States, also contributed full sets of their legal literature; one thing, however, is noticeable, that of the nine States mentioned as contributing, five were southern. The recent violent death of Mr. Justice Willes has called attention to the tendency among the more successful lawyers to excessive work. To "die in the harness" may be a very heroic ambition, but to die when only a portion of the labor of life is done - in the prime of life and in the midst of success, is something that no one contemplates with pleasure. And yet a large class of our successful lawyers are daily preparing for such a "taking-off," by ignoring every rule for the conservation of the life forces. No matter how strong and vigorous the constitution, incessant labor will sap its forces and prostrate its powers ere half the tale of life is told." Choate and Pinkney and Brady, and scores of others that we can each recall, have succumbed through exhaustion of the vital forces, but their fate has proved no warning, and we presume lawyers will go on weaving their own shrouds to the end of time. There is no necessity for this. The life of a lawyer is not essentially an unhealthy one, but he is apt to make it so by making it too sedentary and sluggish. The lawyer who will take an occasional day in the fields with gun and dog or fishing-rod, who will walk and ride and row, and who devotes seven or eight hours to sleep, will have a fair prospect, work he never so hard, of crowning his labors with the silver whiteness of years. The decentralization of the English bar, likely to follow the adoption of the second report of the judicature commission, is exciting much alarm among both barristers and solicitors. This report advocated extending the authority and jurisdiction of the county courts, and thus localizing legal business. At present the great mass of the higher legal business of the country is dealt with by the superior courts and the Central or London bar; but if this business is brought within the jurisdiction of the county courts, the bar, of course, will follow it into the provinces, and the quasi corporate character of the profession will disappear. Mr. Justice Blackburn, dissenting from the report of the commission, said: "I attach much importance to the keeping up the great Central bar of England. The only real practical check on the judges is the habitual respect which they all pay to what is called the opinion of the profession, and the same powerful body forms, as I think, a real and principal check on the abuse of patronage by the government." ✔Among the few charitable associations, of whose noble deeds the world knows too little, is the New York Prison Association. This association was organized in 1844, and, from that time to this, has been engaged in ameliorating the condition of prison convicts, and, so far as possible, aiding them, after the the proprietors of the Chicago Evening Journal, requiring them to show cause why they should not be committed for contempt of court in publishing an article abusing the court for granting a writ of supersedeas in the case of one Rafferty, under sentence of death. These newspaper criticisms are generally written by persons ignorant of the law, if not of the facts, of the case about which they write, and are actuated by decidedly other motives than regard for the public welfare or the interests of justice. When publishers learn that there may be an end to the forbearance even of a court, they may become more decent in their publications. A remarkable instance of the "conflict of laws," is chronicled by a daily paper, which says, that "Rochester University sophomores are arrested by the police, while trying to enforce the traditional law of all colleges that a freshman shall not wear a plug hat.'" Of course, in extreme cases, and where the safety and peace of society is concerned, the law of the land should prevail over the law of the students. But the law-makers, State or city, did not, probably, contemplate the prevention of "cruelty" to freshmen, or the practical abrogation of college laws and customs, by the annihilation of the only means which college boys have of enforcing such laws and customs. While the reign of physical force is to be deprecated expiration of their terms, in leading right lives. By in any and all communities, it is to be remembered a recent report it appears that this association has extended aid to 177,803 of those accused or convicted of crime protecting the innocent, and helping to reform the criminalnot by preaching to them, but by securing honest labor for them when their prison doors are opened. It is stated that about eighty per cent of the convicts are, on liberation, furnished employment - an incalculable service to the State, and to the cause of morality, since, without this aid, few of them, owing to the prejudice against "State prison birds," could ever obtain an honest living. The association has advisory committees in every county, who inspect the local jails and prisons and report their condition. Each year a report on the condition of all the prisons in the State is made to the legislature, and many valuable reforms in discipline and management have been brought about through this means. We are proud to say that among the most active and energetic members of this noble organizations, are such lawyers as Prof. T. W. Dwight, Judge John W. Edmonds, and Judges Folger and Allen of the court of appeals bench. Scarcely any thing can be more essential to the well-being of a State than a due respect for the decisions of its courts of law, and any attempt to degrade the bench in public estimation, in the absence of judicial corruption, ought to be summarily punished. We are glad to notice, therefore, that the supreme court of Illinois has entered a rule against that "boys will be boys," and that the old adage is especially true of college boys. The ques At last that troublesome question, as to the right of a State court to inquire, upon a writ of habeas cor-f pus, into the cause of detention of a person within the State by a United States officer, has been settled by the federal supreme court. Tarble's Case, 13 Wall. 347. The court held, the chief justice dissenting, that no such right existed, but that jurisdiction was vested solely in the United States courts. tion was very ably examined by the supreme court of Wisconsin in the same case (In re Tarble, 3 Am. Rep. 85; 25 Wis. 390); and the authority of the State court sustained. There are a number of other State decisions to the same effect, but they were not examined by Mr. Justice Field who wrote the opinion in the United States supreme court, his argument being almost entirely a priori. It is reported in the daily papers, with how much truth we know not, that Mr. Justice Nelson, of the supreme court of the United States, has determined to tender his resignation immediately after the election. His advanced age and failing health are given as the reasons for this course. Mr. Justice Nelson is the oldest judge on the supreme bench, and has done good service to his country. Speculative individuals name either W. M. Evarts or Judge Woodruff as his successor. |