should utter our invectives; and not against the science itself, which has no inherent tendency to abuse, or corruption, but just the contrary. Indeed, very many of the odious features in the system of English practice, have been either never adopted by our courts, or have been remedied by the legislature; and we are daily perfecting our scheme of pleading (based as it is on the solid foundation of the common law) by progressively getting rid of the adscititious refinements which sully its philosophy, occasion endless delay, and insupportable expense, and introducing, in their stead, such of the equitable doctrines of the Roman law as sufficiently harmonize with the primitive English pleading,-so that we may in time produce a coherent whole;-one that will possess the peculiar excellencies of each code, and be obnoxious to none of the merited censures, at present cast on this important portion of our jurisprudence.

We think, however, that most of those who have attempted to expose the defects of English and American pleading have been a little visionary, and have written as if they saw the entire scheme through a glass darkly. We surely never can agree with those who are inclined to restore oral pleading; we are compelled to regard most of the arguments against the fictions of the law, as, for example, that they mislead and deceive, that they tend to encourage mendacity, and wholly to pervert truth, &c. &c. as extremely futile, and wholly unworthy of the dignity of the subject. We also but little respect most of the arguments urged against the various counts in a declaration,-the proceedings in ejectment, the formulæ of a nar: in trover, the inflammed statements, so usual in declarations, &c. &c. because we think they are either entirely innocent, or, what is still better, most of them may be legally avoided; so that it is not the science which should be so

strongly animadverted on, but its unworthy practitioners.

If

a lawyer (being entitled to charge for every word written by him) will be so unprincipled as to insert at length, four hundred and eighty counts in one declaration, (and there have been such instances) when, perhaps, four would have answered quite as well;-and if he will write out eight or ten of the general counts, when it has been decided that a more summary form is equally good; it is the fault of the courts and their officers, and not of the science itself, if the formulæ are prolix, tedious, and vexatiously expensive. On the whole, we entertain no doubt that a very few simple regulations in regard to pleading, would remove all the solid objections which have been raised against it. We may sufficiently illustrate our views on the subject by a very few examples.

1. We would abolish all taxation of costs-lawyers should not be permitted to create business, and then charge for it, though the charges be regulated by law. Much of the grievous expense of English judicature has proceeded from this cause, and is wholly unnecessary, as is proved in many of the states of the union.

2. The writ should cite the defendant to appear at a fixed time and place, in person, or by counsel, and to give bail, if then required.

3. All rules to compel either party to proceed should be abolished, as it ought to be the duty of each party to proceed at stated times, at his peril. This would avoid the endless delay and expense to which parties are often subjected under the English practice.

4. The plaintiff should be responsible, in the first instance, for all costs, to abide the final decision of the cause; whereas, by the English rule, no defendant is permitted to plead until he has paid for a copy of the plaintiff's declaration,-which,

in that country, is often very onerous, and sometimes a total denial of justice.

5. A bill of particulars should be furnished at the defendant's instance, but it should be auxiliary to, and not in avoidance of the declaration: so that whatever can be proved, may be recovered, if found in the one or the other.

6. The general counts might all be summary, that is, containing the mere substance of each, as for example, for goods bargained and sold, goods sold and delivered, money lent, money paid, money received to plaintiff's use, work performed, &c. &c. there can be no necessity to write them at length.

7. In ejectment the first declaration should be adopted by the tenant on his admission, and not be, as it always is, copied; or, indeed, the whole fiction, as to parties, might be abolished, though we confess we have never been able to perceive the evils complained of, except those which are consequent on a too tenacious adherence to the fiction; as, in the instance mentioned, of copying the whole of the first declaration, when there is no other variance between the two than in the name of the real defendant.

It would be no difficult task to point out many abuses of this noble science, and to suggest simple and adequate remedies; but as these abuses are attributable, much more to the faults of those who cultivate it, than to inherent defects in the science itself, the subject would seem to belong quite as much to the head of Professional deportment, as to that of the Philosophy of Pleading. And as our only object has been, to vindicate in a very brief manner, this excellent branch of our jurisprudence from an odium too commonly attached to it, not merely by the vulgar, but occasionally even by enlightened minds, and by those, too, of our own profession, the few observations we have made must suffice, especially as a more

ample discussion of the subject would be an evident departure from the object of our work, which, as we have several times remarked, is not designed to teach law, but mainly to designate its sources, and encourage their pursuit.

What need we more on this subject? The good sense of the student, we feel assured, will occasion him to ponder well the sentiments we have given from some of the great masters, and the encouragements we have added; and induce him to make the law of pleading one of his chief and favourite studies.

We shall close the present note by bringing to the student's attention, a list of many of the most approved sources of information on this very important department of our science,premising as to this, and as to all similar lists, contained in our notes, that they form no part of his regular prescribed studies; but are at present intended merely to improve him in legal bibliography, to furnish him with the means of occasional reference,—to aid him in the gradual selection of his library; and, finally, to assist him in his deeper researches after he has been, perhaps, many years at the bar.

[The principal sources of information on Pleading may be arranged under the five following heads-Civil, Criminal, Equity, Admiralty, and the Precedents appertaining to each division.

For the bibliography of criminal, equity, and admiralty pleading, and the precedents of each, vide Titles v. vii. ix.-and the 3d division of Auxiliary Subjects, of this Course.]

I. PRINCIPAL TREATISES, &c. ON CIVIL PLEADING.

1. Comyn's Digest, title 'Pleader.'

2. Petersdorff's Abri. vol. xiii. p. 354 to 446, et passim.

3. Dane's Abri. vol. v. p. 636 to 720, vol. vi. p. 1 to 585. 4. Doctrina Placitandi, 4to. edition of 1771.

5. Archbold's Civil Pleading.

6. Chitty on Pleading. [Dunlap and Ingraham's American

edition, 3 vols. 1832.]

7. Lawes' Elementary Treatise on Pleading.

8. Lawes' Practical Treatise on Pleading in Assumpsit, 1810. 9. Hammond's Analysis of Pleading, or Idea of a Study of that Science. London, 1819.

10. Stephen on Pleading. [Troubat's Amer. edi. Phil. 1831.] 11. Saunders on Pleading and Evidence, 1828. Amer. edit. 1829, 2 vols.

12. Evans' Essay on Pleading, with an improved system, Baltimore, 1827.

13. Jackson's Pleading, &c. in Real Actions.

14. Montague on Set-off.

Boston, 1828.

15. Babington on Set-off. [Vide 6 vol. of 'Law Library."]

16. Ballantine on Limitation. Tillinghast's edition.

17. Angell on Limitation.

18. Blanshard on Limitation. London, 1826. [Vide 1 vol.

'Law Library.']

19. Wilkinson on Limitation, exhibiting the recent changes. London, 1829. [Vide 1 vol. 'Law Library.']

20. Gould's Treatise on the Principles of Pleading. Boston,

1832.

21. Hammond on Parties to Actions. London, 1817, Amer. edit. 1822.

22. Williams' Saunders' Reports. [Full of valuable information on Pleading. Vide recent edition by Patteson.] 23. Lawes' Suggestions of Alterations in Pleading, &c. London, 1827.

II. PRECEDENTS IN CIVIL PLEADING.

1. Wentworth's Complete System of Precedents and Forms in Pleading, 10 vols. 1797, 1799.