PRACTICE.
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��common law. Many cases are constantly arising in which no lawyer can tell until the testimony is all in, whether his remedy should be had through the medium of a court of equity or the courts of law. To obviate this great evil a new practice has been established. When counsel have doubt, they may bring a suit at law and then file with it a bill in chancery. When the case is all in the court can give him relief in either, according as they think his case entitles him. He may reverse this process by first bringing his bill in chancery and then a suit at law with the same result. Practically it comes to this, that if a plaintiff has an honest case upon which he can stand, the court by amend- ment and upon such terms as they deem just, will give him such redress as he ought to have, no matter whether he began by writ, petition or bill.
8. When Chief Justice Smith came to the bench in 1S02, special pleading in this state was neither an art nor a science. When he left the bench in 1816. it was both ; and its influence continued in the same general direction for years. Nothing sharpened the wits or the intellects of men more. Men became so astute and acute that they not unfrequently got lost in their own tortuous paths. The practical difficulty with a system of special pleading was that it was really bottomed upon the theory that human affairs were controlled by the rules of logic and capable of being reduced to mathematical proposi- tions, whereas few things are ferther from the truth. The result was that jus- tice was entangled in the meshes of petty technicalities. The legislature inter- fered. Nobody now is compelled to plead specially, though he may if he see fit. And for one I rejoice that the day has passed. The machinery of the law was designed to subserve the ends of justice, and not merely to sharpen the wits of men and develope their power to invent Chinese puzzles.
But I do not go to the extreme that a Missouri legislature once did. They passed an act to abolish special pleading and stopped there. The result was that nobody knew what to do. The plaintiff was not bound to tell what he claimed, nor the defendant to state his case. A trial resembled a town-meeting held by lunatics more than anything else, and the legislature was compelled to repeal the act the next year. A fair trial cannot be had unless the plaintiff is compelled to set out on paper the ground work of his case and the defendant follow the same course in his answer.
The subtlety of special pleading lasted longer in Vermont than it did in this State ; and I trust no student v»'ho desires to understand what special pleading meant will fail to examine the case of Susanna Torrey 7>. Roswell M. Field, 10 Vt., 353-417-
The purpose of the defendant as shown by that case may not have been the most praise-worthy, but his pleadings are masterpieces.
This and the Field divorce suit, 13 Vt., 460, are among the most celebrated causes. Field was an eminent lawyer. He married in due form, Mary A. Phelps in 1832. Without a divorce, she soon after married one Clark, an old sweet-heart. Field believed that she had been alienated from him through the in- fluence of her mother and other relatives, and from disreputable motives. He therefore filed a bill in chancery in the name of himself and wife against her mother and the other heirs, to free her real estate from the cloud of their title. This bill imputed to her mother and others all manner of iniquities. As some of the defendants did not reside in the state. Field had the bill published in the newspapers. His wife's mother, who had married Torrey, thereupon brought suit for slander against Field. Field filed ten special pleas, reiterating the slanders and justifying them in pleading. He finally won, ammerccd the plaintiff in costs and drove her out of court. Whereupon his wife's second husband filed a suit in chancery to dissolve the marriage between his wife and Field. The supreme court of Vermont, in effect, restrained Field from setting
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