The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. IX, Part 55

Author: Hazard, Samuel, 1784-1870
Publication date: 1828
Publisher: Philadelphia : Printed by W.F. Geddes ;
Number of Pages: 440

USA > Pennsylvania > The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. IX > Part 55

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According to other opinons, the imperfections of the law exist chiefly in the administrative portions of it. We want, it is said, a system of judicialproceedings more sim- ple and convenient, one which shall in all respects be co- extensive with the co-ordinate and principal branch of the law, and adapted to carry into effect its various pro- visions by direct methods. These views appear to us to be more just. The modern law, however preferable in other respeets, is entitled to less praise for simplicity and directness in the application of remedial means than the ancient; it would be easy to assign the reasons, but the result is, that while some portions of this branch of a the law have been suffered to fall into disuse, other parts have been amplified beyond their original limits. Fic- tions have been resorted to, and upheld as a sort of ho- mage to principles, and upon the whole, much more has been done by existing means, than was originally in- tended. The origin of fictitious ejeetment is familiar. It was a bold act of judical innovation. The action of Trorer is essentially fictitious, and as a form of action, owes its origin also to the courts. The action of_Is- sumpsit may be mentioned in this connexion, and also the action for seduction. These are instances of judicial ingenuity in the application of the remedial law. No doubt the motives which have induced the courts to ex- tend their forms were highly commendable, but it is perhaps to be regretted that they did not rather uniform- ly make such an exposition of their powers and of the remedies at their disposal, as would have exhibited their

What are the imperfections in the laws? Some di- versity of opinion upon this subject exists among the best informed men. It arises in a great measure, from the different standards of judgment which they adopt. It is a great imperfection in the law, according to some opinions, that so much is left to the discretion of the tri- bunals, to remedy which, it has been proposed to form a code, which shall contain a precise and unequivocal rule for every case. Thus, it is supposed would not on- ly make the law better known to the public, but it would prevent judicial legislation, as it is called, and re- store its prerogative to the constitutional and real legis- lature. We fear that imperfections of this nature must inevitably forever remain. Positive laws can never sup- | real defects. It is not necessary to add to these instan- ply the use of natural reason.

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ces: they sufficiently exemplify our object. Certain it is, that before the settlement of this commonwealth, nearly the whole exterior of the remedial law had been changed by the courts. Many of the methods to which their principles constrained them to resort, were indi- rect, and however great these methods may have been as improvements, they were at least a sacrifice of the simplicity of the system upon which they were engraft- ed.

We pass now to some considerations which are pecu- liar to the remedial law of this commonwealth. It is well known that the chancery jurisdiction was in the early period of our history repudiated. The principles of equity were however retained and mingled with the elements of the common law; whether all these princi- ples can be so blended as to admit of convenient ad- ministration by the existing, viz. by the common law methods, is perhaps, questionable. The experiment is of a highly interesting character, and from the success which has hitherto attended it, there can be no doubt that the material and most valuable parts of legal and equitable jurisprudence may be made to amalgamate, and with occasional aid from the legislature be success- fully administered by our courts. It has been a princi- ple with them to retain all forms of proceeding known to the common law. In theory many are believed to exist, which are not known to have occurred in prac- tice, yet they are more. extensively in use here, than in places where courts of equity exist, with the appropri- ate attributes of chancery. The writs of Dower, Waste, Estrepement, Assize of Nuisance and the Action of Ac- count Render, may be mentioned as examples.

There are undoubtedly some matters of equitable ju- risdiction, which require more comprehensive opera- tions than are compatible with the due and obvious use of common law process, and some matters of equitable consideration and relief, which call for different admin- istrative appliances. Yet the principles of our system, require that the resources of the common law, should be first resorted to, and applied, and when exhaust- ed, such further remedial means may be supplied by direct legislation as shall be necessary to render this branch of the law fully adequate to the ends of justice. The action of account render has been incidentally men- tioned. This action is nearly obsolete in England, and quite so in some of the sister states; but it is essential to our system. It partakes largely, however, of the char- acteristics of the ancient actions. Many of its forms are | to this, no answer or replication is ever given to it. peculiar, and in some respects necessarily so. It had been obscured also, by long disuse, when it was adlopt- - ed into our practice. It has undergone some change by the authority of our courts, and in a few instances, the legislature have interfercd to amend its provisions. This action is believed to be susceptible of great improvement. A declaratory act, embodying its principal rules in a compendious and intelligible form, would we think be eminently useful. Detinue, is another action, well adapted in some respects, to the peculiarities of our law; the redress which it is designed to yield, is specific. In many cases such redress only would meet the just views of the party injured. It has also another property well adapted to the trial of a great variety of questions of ordinary occurrence: we allude to the practice of inter pleader, a method by which third persons may be made party to the action, where their interests are principal- ly concerned. This practice bears a strong analogy to the comprehensiveness of chancery proceedings and seems peculiarly fitted to the transactions of a commer- cial community. It is worthy of consideration, whether this action may not be brought into more general use in the manner already suggested in relation to the action of account, or whether the peculiar advantages of this action may not be engrafted upon others in more common use, we shall pursue the enumeration of actions no far- ther, although there are several which contain expedi- ents that may be made largely to subserve the admin- istration of our equitable jurisprudence. We conclude /

this subject with one general remark: whatever legisla- tion may be adopted on the subject of actions, it should have the common law for its basis. In other words it should be in the main merely declaratory. The experience of our ancestors will form a safe rulc. It would be unwise to reject it for new inventions, for however_well they may be conceived in respect of general views, details will escape observation, and in matters of this sort, they are in their nature too fugitive and mutable to be laid down with due precision by the most vigorous and well furnished mind.

For the purpose of ascertaining the amount of litiga- tion in the commonwealth, the forms of action in which it is principally carried on, the effect of the system of arbitrations and other matters connected with the ad- ministration of justice, we addressed early in the last summer, a circular letter to the prothonotaries of the several counties, with appropriate inquires. By the courtesy of many of these officers, we have received in reply much valuable information, which will serve as a useful guide to us in the performance of this branch of our duty. We had hoped to have it in our power to submit with this report a summary of the whole.

We are persuaded that it would form a foundation for many useful considerations, touching this branch of the revision. We hope hereafter, to submit this infor- mation to the legislature.

We fear to extend thesc remarks; but there remains one topic of too much importance to be omitted-we al- lude to the subject of pleadings. No portion of the law has been the subject of more frequent reproach, than the system of pleading's of the common law courts, and none has been more encumbered or disfigured by refinements foreign to its objects. According to the opinion of Chief Justice Hale, the pleading's of the courts in the reign of Edward III. were far superior to those of his own times. The legislature has interfered with the courts more frequently in this branch of the common law, than in any other, but it was to cor- rect particular mischiefs. An act to restore the princi- ples of the science has never been attempted. Such a measure has been recently proposed in England, and would be attended no doubt, with the best results. But our system of equitable pleadings is crude in the ex- treme. The notice which it is the practice to give, un- der some general plea of the equity intended to be set up, may be multifarious, diffusive, and informal. Add

It is neither denied, confessed nor avoided by any other matter. The whole transaction in the controversy be- tween the parties, is left open to its broadest extent, however narrow may be the limits of the real dispute. And even if the controversy concerns merely the legal effect of the transaction, which in the method of plead- ings would be admitted by both the parties, still it must usually be tricd through the medium of the jury. We need not dwell upon this subject: the effects of this practice are various and of serious operation. The ex- pense of litigation is increased to the parties and to the public; the public business is delayed; the burthen of attendance upon courts as jurymen or witnesses is in- creased to individuals, and courts are compelled to de- cide extemporaneously in their charges, the most com- plicated questions of equitable jurisprudence. Another serious consequence is, that our equity is vague. In the matter of title to real estate the certainty, stability and uniformity of the law is of immense importance- and that system is best, which most effectually secures to it these properties. The maxim stare decisis can ne- ver be made to apply with the full effect to the decisionsof juries. It would be easy to illustrate these views by ex- amples. They are not uncommon. But we pass on to one concluding remark. The defects in this part of the system are not incurable. We do not indeed suppose that these equitable pleas are susceptible of the single- ness, certainty, and particularity of a common law issue. The equity of a transaction may be the result of many

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facts that cannot be involved in the denial of one. Nor do we suppose it would be useful to introduce in any degree, the subtleties or strictness of the common law system, as it now exists elsewhere; but a system which requires no extraordinary professional skill, which im- poses no undue labour upon the parties or their coun- sel; on the contrary, by requiring it to be bestowed at the proper time, diminishes the labour of all who may be in any way concerned-a system which, while it con- tributes to the despatch of business, ensures certainty in the administration of justice, and lightens the arduous and responsible duties of the judges; so far from being repugnant to the liberal spirit of our laws, is essential to effectuate their intent. Into such a system may the pre- sent practice of our courts be converted, without dis- turbing any of its essential or useful principles or pro- perties.

We have thus adverted to some of the topics which have occupied our attention. It is not our object at present to suggest plans of amendment. These form a distinct class of considerations, and will require mature reflection. The amount of correction necessary, and the mode in which it may be performed, is often a diffi- cult question; and it is never to be forgotten, that the dangers of the correction proposed are not less careful- ly to be considered, than the mischief to which it is to be applied.

Sufficient, we trust, has now been said, to satisfy the legislature that the time limited by the resolutions for completing the revision in the manner enjoined upon us, is entirely insufficient. We have not, indeed, devoted our individual attention to the subject-we thought it was not intended we should do so; yet our whole time, assiduously employed during two years from the date of our appointment, would have been inadequate for the purpose: for although, as we have remarked, we have not given to it the whole of our time, we have subtract- ed from our professional pursuits a very large portion of it for the performance of these duties, and yet much of our labour remains to be done. We are, however, at present prepared, by our examinations of various branches of the laws, and the collections and collations of them which we have made, to proceed with more speed in the residue as we believe, than has hitherto been practicable. Hut our preparations have not been confined to mere collections and collations of our own laws: we have, at no inconsiderable effort and expense, collected copious and valuable materials from other sources. At no former period, perhaps, has the law been made the subject of so extensive and minute ex- aminations, in reference to its principles and defects, as within a few years past. In addition to former sources of information, the observation and experience of prac- tical men, has been recently put in requisition by public authority. The law has been exhibited not only in re- ference to its theory, but also in reference to its practi- cal operation and results. The discussions, for exam- ple, which occurred in the formation of the present code of France, have signally developed the jurisprudence of that country; and although in many respects diverse from our own, yet "an enlarged acquaintance with it," if we may adopt, with a slight modification, the senti- ment of a very eminent American jurist, "would furnish the most solid means of the improvement of the law as it now is or may hereafter be administered in America." In England, too, investigations conducted under the authority of parliament, have also resulted in a mass of details of great practical value, not only to that country, but to most of these United states; indeed, we might say to the science of legislation generally. We should deem it culpable neglect on our part to over- look sources of information so valuable. We do not suppose a rapid execution of the revision to be compa tible with any just views of our duties; yet we doubt not that we shall be able to report annually, until the whole' be finished-as large a portion of it as the legislature will find it convenient, in connexion with their ordinary

business, to consider: and it may be worthy of consi- deration, whether the general interests and convenience of the public would not be promoted, by successive re- ports of the laws by titles. The learned Judge Barring- ton, in a work of much merit, suggested a method in some respects similar, for the revision of the English statutes, and the late Judge Roberts thoughtit the most practicable and rational mode for the reform of our own laws. We will only add, that in this method, the re- vised acts would be more fully and fairly tested, and any delects which may be developed by practice may be most conveniently amended.

W. RAWLE, T. J. WHARTON, JOEL JONES.

March 1, 1832.

From the Philadelphia Gazette.

PROCEEDINGS OF COUNCILS.

Thursday, March 22, 1832.

SELECT COUNCIL .- Mr. Jouxsox presented a petition praying that Fourth street from Arch to Vine streets be re-paved, which was referred to the Paving Committee.

Mr. Jouxsox presented the following petition from the Washington Fire Company, which was referred to the committee on Fire Companies:

To John M. Scott, Esq. President, and Members of the Select Council of the city of Philadelphia.

The undersigned, a committee appointed by the Washington Fire Company, beg leave to lay before the Honourable the Select Council, the following preamble and resolution adopted by said company, and respect- fully solicit an appropriation of money to be applied to the purchase of a suitable Bell tohe rung in time of fire, and to be located in the S. W. section of the city. The committee presume to hope, that the same liberality will be extended to the people in this district, which has been so recently granted to those of the North Western section.

W. P. SMITII, W. W. WEEKS, L. H. GARSON.

" Whereas, the exposed situation of the South West section of the city is such, as to require the utmost vigi- lance of the fire-men and citizens to guard from acci- dents by fire; and the distance of this district from the state-house is so great, that the fire-bell is frequently unheard, and is indeed almost useless when a fire oc- curs far to the south west; Therefore,

Resolved, that a committee of three members be ap- pointed to make application to the City Councils, for an appropriation to be applied to the purchase of a suita- ble Bell, to be affixed to the Engine House, or such other place as the Councils may direct."

l'biladelphia, March 1832.

Mr. Jonssov presented the annexed memorial from the Farmers of Chester county, which was referred to the committee on markets.

To the Honorable the Select and Common Councils of the city of Philadelphia.

The petition of the subscribers, respectfully show- cth :--

That they are Farmers of Chester county, who are now and have been for a long time, in the practice of bringing the produce of their farms to the Philadelphia market, and standing with their wagons, in Second. street, south of Market street, where, for the purpose of cutting up their meat for sale, they have always been necessarily accustomed to use narrow benches, &c. and have never been interrupted till lately; that is, since the

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passage of the ordinance of the 23d December, 1831, under which some of their benches, &c. have been seized, and those to whom they belonged, brough+ be- fore the Mayor, who decided against them as he thought he was bound by the said ordinance to do; wherefore your memorialists beg leave to represent to Councils, and to solicit them, if such be the true construction of the ordinance, that they, and others, similarly situated, may be so expressly exempted therefrom, that there can be no doubt upon the matter. They think that if Councils con- sider their case, they will be satisfied, that it is not on- ly for their own benefit, and interest, but that of every citizen of Philadelphia, that your petitioners should be protected and encouraged; for in the first place they are not only farmers, who own farms, but bring the pro- duce of their farms to market with the meat they have. raised or fed; which is by many citizens preferred to what is called " Butcher's Meat;" and moreover tends to keep down the price of meat by increasing the sup- ply, and thus also prevents the victuallers, by having the sole supply of the market, from having a monopoly, or fixing their own price, and renders too, the citizens more independent, securing them against another with- drawal of the victuallers; whereas, if your memorialists are prevented from using their benches or blocks for cutting up their meat, they willbe virtually expelled the market, or be obliged to quit bringing meut to market, be- cause the plan of confining them to cut up the meat in their wagons is next to impossible; the wagons are not firm enough, there is not room in them, with a quarter of beef, and potatoes, apples, eggs, poultry, and other pro- duce therein, nor can they cut it up before they come to market, for not only would the appearance be spoiled, but it must be cut in pieces to suit purchasers, which cannot be ascertained before it is wanted. Your memo- rialists and those who have gone before them for many years, have used and exercised the privilege of ha- ving benches or blocks to cut on, and no inconveni- ence arose therefrom, nor was any complaint made; or- dinances with similar provisions were enacted, but not enforced against them, nor supposed to be intended for them, and indeed, your memorialists think they are not embraced under the 21st section of the last ordinance, but are protected in the 31st section as " Farmers who bring the produce of their farms to market;".they can- not believe that the Councils intended to deprive them of their old privileges and thereby exclude them, as they would be from the market. They think that Coun- cils aimed at what are called " Shinners," and not at " Farmers." And they only ask that actual farmers bringing the produce of their farms, and the meat they have raised or fed, may be allowed the long accustomed privilege of cutting upon benches or blocks; and have nothing to say against those who cannot prove them- selves such, being deprived; wherefore they solicit that a short supplement may be passed for the purpose afore- said, or that Councils may take such measures as they deem meet respecting the matter.

The subscribers, inhabitants of the city, in Second street, south of Market street, and in that neighbour- hood, respectfully join in the within petition, and re- quest Councils to grant the prayer of the petitioners for the public good and benefit.

Mr. JOHNSON presented the subjoined remonstrance against the erection of new Market-houses in High street, which was laid on the table.

To the Select and Common Councils of the city of Phila- delphia.

Your memorialists, inhabitants and owners of proper- . ty in the western section of Philadelphia, respectfully represent, That they have seen with regret a petition presented by sundry individuals, praying for the esta- blishment of a Market-house in High street, between Twelfth and Juniper streets. They would respectfully suggest to Councils that a large and increasing country business is transacted within the aforesaid limits, which would be totally destroyed by such an arrangement, as

it would then be impossible to load and discharge the large wagons that are used as a means of conveyance for bulky goods. That this trade must be lost to the ci- ty by the attractions presented by the northern districts for, the facilities of trade, or at least diverted to some other section which would be unjust to many of your memorialists. That a Market-house erected as prayed for, would be a serious impediment to the transporta- tion of goods to aud from the lower parts of the city, thereby producing great detention and embarrassment to all who transact business in Market street. It is known to most of our citizens that the great superiority of our market is attributable to their concentration; that mar- kets, like capital, when too much disseminated, do not fulfil to the uttermost the objects for which they were established.

And, as an illustration of this fact, your memorialists would call to the remembrance of Councils, that a Mar- ket-house was established some ten years ago, in the im- mediate vicinity of the site that is now prayed for by your petitioners ;* that it was scarcely ever occupied or attended, and that about three years since by the order of your honourable bodies it was removed, as not bene- fiting the community for which it was intended. In con- clusion, your memorialists beg leave to question the ne- cessity of erecting any additional Market-house at this time-as the side walks as far west as Centre Square, are occupied as market places by those who supply the market, who furnish our citizens with every marketable article excepting fish, that can be purchased any where else within the city.

Should Councils, however, in their wisdom determine to establish additional buildings for markets, your me- morialists would be doing themselves and their fellow citizens great injustice, not to urge upon Councils, the propriety of continuing the line of markets from 8th street west, as they may be required, instead of leaving a large space of four squares unoccupied-which would be the case were the prayer of your petitioners granted -or if that is not deemed expedient, to locate a market on one of the corners of Penn Square. And your me- morialists will ever pray.

Philada. Feb. 7th, 1832.

Mr. WORRELL presented a petition, praying that Beach and Willow streets may be paved, which was re- ferred to the Paving committee.

Mr. PETTIT presented the annexed memorial from the different Fire companies, which was referred to the committee on Fire companies.

To the Select und Common Councils of the City of Phila- delphia.

The Memorial of the undersigned, the Fire Companies .

located in said city,

Respectfully showeth-That your memorialists from the circumstances herewith presented, are under the necessity of soliciting the further aid of the city Coun- cils, to enable them to prosecute, with vigour and suc- cess, the object of their institution.

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The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. IX, Part 55

Author: Hazard, Samuel, 1784-1870 Publication date: 1828 Publisher: Philadelphia : Printed by W.F. Geddes ; Number of Pages: 440

Author: Hazard, Samuel, 1784-1870
Publication date: 1828
Publisher: Philadelphia : Printed by W.F. Geddes ;
Number of Pages: 440