COMMON LAW AND MODERN CODES 151 



how majestically the old declaration of trespass vi et armis marches 

 along ! 



Henry Hawe complains of John Planner of a plea of trespass, for that he, on 

 the 4th of September, 1664, with force and arms, made an assault upon the plain- 

 tiff, and beat, wounded and ill-treated him, so that his life was greatly despaired 

 of, and other wrongs to him did, against the peace of the King, and to the damage 

 of the plaintiff in £700; and therefore he brings his suit. 



Five lines upon the printed page ! Mighty causes have thus arisen 

 and been decided. The Dred Scott Case, which inflamed half a great 

 nation, and perhaps provoked a war, but never a shot at the pleadings, 

 was a simple action of trespass ; likewise Luther against Borden (Dorr's 

 Rhode Island Rebellion) which enriched both precedent and history, 

 and saved the day for the reformers, for the time at least, if it did not 

 furnish models for their pleadings, three-quarters of a century later in 

 Oregon's initiative and referendum case;' while the Dartmouth College 

 Case, decided in 1819, spite of the storms and criticisms of a century, 

 such as perhaps no other case ever called down, stands today firmly 

 rooted in a declaration of trover. 



Does the garb of these pioneers, trover, trespass, case, assumpsit, 

 offend you ? Would you cut out now as vanity such phrases as " so that 

 his hfe was greatly despaired of" as above or "against the peace of the 

 King" or people ? Remember the buttons on the tails of your coats. 

 Aside from their historical significance, of which the young have ever 

 to be reminded, these embelhshments in old pleadings have for me 

 a peculiar charm even when their utihty is no longer perceived. So 

 with their respective defenses, to be presently briefly noted, not 

 omitting the special traverse of the absque hoc. I recall an answer 

 served upon me by a gentleman of the old school some years ago in 

 an action for damages for taking timber from the public domain. 

 It began: 



The defendant, by J. Sam Brown, his attorney, comes and defends the wrong 

 and injury when and where it shall behoove him, and the damages and whatsoever 

 else he ought to defend, and says — 



Did I move to strike any of that out ? No ; for several considerations. 

 I may not have been able before Judge Hallett. Besides, it worked 



» "Pac. States etc. Co. v. Oregon," 223 U.S. p. 118. 



