154 UNIVERSITY OF COLORADO STUDIES 



Judge Gibson of Pennsylvania declared that known modes of 

 procedure according to the common law ought never to be changed 

 but to avoid some practical mischief or serious inconvenience,' while 

 another distinguished judge of that state thought that the Pennsyl- 

 vania act abolishing pleading a fruitful source of writs of error. ^ I 

 should pass hurriedly over this field, but I cannot refrain from quot- 

 ing from yet another Pennsylvania case, a later one, 1889. A quantity 

 of hams had been sold and delivered to one Sides. Mr. Justice 

 Mitchell, declaring that the plaintiff's statement was at least three 

 times as long as a declaration in the established forms need have 

 been, said: 



This case affords one among many examples of the failure of the so-called 

 reformed procedure to accomplish anything towards the brevity, the clearness, the 

 accuracy or the convenience of legal forms. So long as the fundamental principles 

 of our remedial jurisprudence shall be, that upon conflicting evidence the jury 

 shall ascertain the facts, and upon ascertained facts the judges shall pronounce 

 the law, so long will it be a cardinal rule of pleading, by whatever name pleading 

 shall be called, that the line of distinction between facts and the evidence to prove 

 them shall be kept clear and well defined. The notion of the reforming enthusiast 

 that the average litigant or his average lawyer can make a shorter, clearer, or less 

 redundant statement of his case if left to his own head, than if directed and 

 restrained by the settled forms, sifted, tested and condensed as they have been by 

 generations of the accutest intellects ever devoted to a logical profession, is as 

 vain as that of any other compounder of panaceas.^ 



Influenced by such considerations, perhaps, many lawyers to this 

 day prefer to have even a power of attorney begin, "Know all men 

 by these presents." 



From Kentucky come the same criticisms;'' while this stricture 

 is from the Supreme Court of the United States in a case which came 

 up from Texas. Mr. Justice Grier: 



Had this case been conducted on the principles of pleading and practice known 

 and established by the common law, a short declaration in assumpsit, a plea of 

 non-assumpsit, and of non-assumpsit infra sex aminos, would have been sufficient 

 to prepare the cause for trial on its true merits. But unfortunately the District 

 Court (of Texas) has adopted the system of pleading and code of practice of the 



' 2 Penrose and W. p. 494. * "Hubbard v. Tenbrook," 124 Pa. St. p. 291. 



'iSearg. and R. p. 265; 4 Min. Inst. p. 609. < 14 B. Uon. 85. 



