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him left by a passenger who had left the car. He, possession of the street car company as a grapicked up the package, examined it and found tuitous bailee. On this point the New York no name or mark upon it. He disembarked Court of Appeals said: at the first subsequent station stop of the train,
"After the passenger owner had left the car, taking the package with him. He was about
forgetting to take the package with him, the ten feet from the car when a railway guard
plaintiff knew the package was not lost propin whose charge the car was, touched him on erty. It or the custody of it did not belong to the shoulder and said: "What are you going him then any more than it did while its owner to do with that package?" to which he replied:
was in the car. He saw and knew the owner
had forgotten it, and had left it by mistake. It “I am going to keep this and advertise for the
then had become in the custody and the potenowner." Forthwith the general trainmaster of tial actual possession of the defendant. It was the defendant, Mr. Blewitt, spoke to a police the right of the defendant and its duty to beofficer. After a brief conversation the plain come as to it and its owner a gratuitous bailee. tiff, the officer and Blewitt went to the police
It was its right and duty to possess and use the
care of a gratuitous bailee for the safekeeping station, where Blewitt made the charge or
of the package until the owner should call for complaint that the plaintiff found the package on the train of the defendant and refused to
The authorities abundantly sustain the desurrender same to officials of the railroad com
cision of the New York Court in this case. pany. The police captain in charge of the sta
Rebina v. Pierce, 6 Cox Cr. L. 117; State v. tion then held the plaintiff in $500 bail, and
Courtsol, 89 Conn. for it (Rebina v. Pierce, 6 he was put and remained in a cell until the
Cox Cr. Law Cases 415; Kincaid v. Eaton, bail was furnished. In the meantime the pack
98 Mass. 139; McAvoy v. Medina, 11 Allen 548; age had been opened and found to contain a
Foster v. Fidelity Safe Deposit Co., 264 Mo. 89; loaf of bread. The next morning the plaintiff
Hoagland v. Amusement Co., 170 Mo. 335; Ferappeared in the Magistrate's Court. Blewitt
guson v. Ray, 44 Oreg. 557; Hamaker v. Blanthen and there verified a written complaint
chard, 90 Penn. St. 377; Deaderick v. Oulds, which stated that the plaintiff, "with intent to
86 Tenn. 14; Griggs v. State, 58 Ala. 425; Redeprive the true owner of his property, in the
gina v. Moore, 8 Cox Cr. Law Cases, 416; Peoview and presence of complainant, did will
ple v. McGarren, 17 Wend. 460; State v. Mcfully steal, take and carry away from a car
Cann, 19 Mo. 249. of the Sea Beach Line a parcel containing a loaf of bread, of the value of about five cents, the property of a passenger who had left said car at 59th street station and had left said parcel behind him. Wherefore deponent THE LAW'S DELAYS AND SOME charges said defendant with the crime of petit
PROPOSED REMEDIES. larceny." The plaintiff was held to answer in bail for the Court of Special Sessions. In the Court of Special Sessions the plaintiff was tried
The delay of the law is an ancient grievand acquitted. Whereupon plaintiff brought this suit.
ance. It furnishes a splendid opportunity The Court of Appeals in its opinion declares
for invective, –and a safe one, for there is this package to have been "left" property not
no one who will defend it. Most people "lost" or "abandoned" property, entitling the prefer to endure it. The attitude of most finder to superior rights against all but the lawyers toward it either is one of sullen true owner. This distinction is recognized
disgust or of whimsical indifference. Bar in the old Tennessee case of Lawrence v. State, 1 Humph. 227, where the Court said that
Associations convene, and some member "To lose is not to place or put anything care
inveighs against it, to the accompaniment fully and voluntarily in the place you intend of thunders of applause of the “Hit 'em and then forget it; it is casually and involuntarily to part from the possession, and the thing
agin” kind. The Association weightily reis then usually found in a place or under cir solves and roundly denounces. A commitcumstances to prove to the finder that the owner's will was not employed in placing it there.
tee is solemnly appointed, which, surveying To place a pocketbook, therefore, upon a table, the magnitude of the task of recommending and to omit or forget to take it away, is not to lose it in the sense in which the authorities re
any remedy, contents itself with more referred to speak of lost property."
newed denunciation, or,—just as well, In the principal case, the package found in
promptly forgets all about it, and its memthe car was not "abandoned” but “left” in the Ibers engage again in their usual business.
The bar declares it to be the duty of the away with 1500 fellow-lodgers in his musty people to cure the evil. The people reply archives, where in Vebraska and possibly a that it is the peculiar province and function few other states, it sleeps undisturbed for of the bar. The bench,—not being an in- two years. Everybody, except the parties, surgent, and being quite able to stand it, forgets about it. The appellant is secure if the rest can-looks on with dignified | from justice. The appellee rages, but in complacency, keeps on the even tenor of its vain. Finally, when the case appears on more or less leisurely way, and does the the Supreme Court calendar, counsel resurbest it can. Everybody agrees that the sit- rect this record, go over the case again, reuation is exasperating and deplorable, but fresh their memories, and, in short, do all nobody does anything, few give it thought, or most of the work over again. The judgand yet, all hope for better things. It is ment is affirmed. The seeker for justice is my purpose to go farther than mere de disgusted, and the conspirer for delay has nunciation, to indulge in something more gained his point. than mere general criticism,-in short, to suggest affirmative action,—to propose
Rather than invite such a calamity, is it remedies.
any wonder that clients elect to suffer com
mercial piracy? I think that they are wise The first question a client asks his law- in concluding that it is better to be robbed yer, after he has been assured that he has | by a private citizen, who can probably be a cause of action or a defense, is—"How | reached in some way or other, than to be long will it take?" He has heard about the robbed by the legal machinery of delay that delay in law and fears it. He is told that, is unnecessary. What sensible man is there -“The case ought to be ieached next term, today who will submit any considerable if nothing happens.” And usually, if the part of his fortune to the certain delay of case is contested at all, something does litigation, save from imperative necessity? happen; and the thing that happens is not To such a man “to go to law” means the the trial and decision of the cause, but the practical suspension of his accustomed operation of the machinery of delay. If business activities for three years,-and both lawyers think that they can win on men will not do it unless under the gravest the merits, a trial may be reached in four | compulsion. The result is that the citizen's or five months after the case is commenced, wrongs go unredressed, his rights unproand even, in rare cases, in less time than tected and he himself is made the prey of that. But, if either party fears defeat on the unscrupulous. And the lawyer gets no the merits, and his only hope is to stave big fee for merely informing the client, off the day of judgment, the case may be | or near-client,—that the machinery of justried in six, or nine months or a year after tice of which he is in charge is so unwieldly it is commenced. Finally, the case is tried, that it is wholly inadequate to the situaand,-after a time,-a just judgment is de
tion. livered. Then, the defeated litigant has The situation can be changed. The ezil time enough to go to Europe and back a
can be remedied. Other states have done it. dozen times in which to decide whether it will suit his purpose to obtain the addi
Some time ago the writer began investitional delay insured by filing a transcript
gating into the causes of delay in litigation, in the Supreme Court. The prospect of an by corresponding with lawyers in about other two years' immunity from justice is
fourteen states of the union, and we found so inviting that he decides to appeal. Then
the main causes to be as follows: the record goes to the Supreme Court and 1. Motions and demurrers—That is to the clerk marks it "FILED," and puts it I say, contests over the papers, instead of over the case,-and lack of opportunity to As to general demurrers especially, there present and lack of prompt decision upon is no real need of them, for the question of the questions presented by them.
the legal sufficiency of cause of action or 2. Excessive periods of time within
ground of defense is always present in which to do certain acts in the course of
every case, anyhow. And it cannot be litigation,-granted by the Court or pro
strengthened by a written demurrer, or vided in the statute.
waited by failure to file one. It, therefore,
has no legitimate place in the making up | 3. Vumerical excess of judges of Courts
of the issues. Yet, it is a common occurof last resort required to hear a cause or to
rence for the time of courts to be taken fronounce a decision.
up hearing arguments upon demurrers, and t. Procrastination, indifference and
deciding them, when it is perfectly well laziness of judges and lawyers, and too
known that, if overruled, the party will much so-called “professional courtesy" be
answer over, and, if sustained, the party tween the bench and bar.
whose pleading is held defective will We will take these up in their order. amend. And the Court will give such a
time within which to answer or amend as
will carry the case over the term,—thereby First of demurrers and motions incident
causing a delay of three or four months. to the making up of the issues in a case.
And that is not all. Demurrers may be And here I except from consideration any
filed to amended pleadings and the same demurrer upon which a party "stands," for
nauseating performance gone over again that is, in effect, an answer. I refer to
ad infinitum. The time of the paid judithose demurrers upon the overruling of
cial offiicers of the state and the time of the which, the party interposing them, answers
litigants is consumed in determining over. The demurrer to a pleading chal
whether the pleader is a good pleader or lenges the legal sufficiency of the paper
a bad one; a question which neither the case, and not the real case. It does not
state nor the litigant is concerned about at question the sufficiency of the facts, but of
| all. the pleader's statement of the facts. It is, therefore, a paper contest,-pure and sim- I do not mean that there should be no ple. The common defense of a demurrer opportunity to question the legal suffiiciency is that a party ought not be compelled to of a pleading of fact. What I do mean is make answer until there is a cause of action | that the possibility of employing the deor ground of defense stated against him. | murrer as an instrument of delay should be You might as well say that a man ought removed, and that the time for filing not be brought into Court at all, unless | amended pleadings should be so limited as judgment can be recovered against him. In | not to result in successive continuances; actual practice,—no matter what the and that can be easily done. In the Province theories may be --in actual practice, it is | of Ontario, no demurrer to the pleadings very well known that, if a demurrer would | is allowed except an oral demurrer interbe good, it is seldom interposed, the party posed at the trial, and a ruling upon it is who might very appropriately interpose it generally an adjudication of the case. The preferring to have his adversary go to trial | party whose pleading is held defective has on a defective pleading than to educate him one locus poenitentiae, viz: He may disinto filing a good one. The result is that, miss, if he is the plaintiff, and begin over when a demurrer is filed, it is for the ex- again ; and, if the defendant, he may amend press purpose of delaying a trial on the instanter, if the proposed amendment does merits.
| not delay the trial. The judge has a certain discretion in the matter. The written sought it may file another motion to strike demurrer to petition or answer ought to out what he first demanded. Of course, any be abolished altogether,-as the new Fed- judge would instantly, I hope, overrule such eral Equity Rules provide. . .
a motion to strike, but the judge cannot Motions to strike parts of pleadings of
be there at all times to make his ruling, fact, and to strike the entire pleading from
and, as long as a motion to strike can take the files and motions to amplify pleadings
the place of the required pleading, it will furnish another fruitful field of operations
| be an effective instrument for delay. Unfor the delay man. For motions to strike
der the present condition, the battle of the there is seldom very little, if any, excuse.
motions and demurrers goes merrily on to Redundant and scandalous matter in a
the absolute obstruction of justice. It is a pleading may be offensive to the fine sensi
sham battle. Nobody reaps any real vicbilities of the careful pleader, but it is rare,
tory or suffers any decisive defeat. The indeed, that they do him substantial harm
cause itself that the parties came into Court Such averments are robbed of their power
to litigate, remains untried and undecided. for harm by the Court eliminating them
The whole function of demurrers and mofrom the jury's consideration, excluding
tions to strike is a play for position, or to proof upon them, or in disregarding them
secure unwarranted delay. And, after they
are ruled upon, the court often gives the in making up his own decision, if it be an equity suit. And there can be no great
party time enough to amend or plead to difficulty in answering them as long as we
carry the cause over the term, and does it, have the general denial. Motions to strike
too, with a self-satisfied smile of comhave to do with the trifling and even frivol
placency on his face, and in the name, forous things, and should never be permitted
sooth, of justice. I devote considerable to take the place of a pleading of fact re
time to this matter of motions and demurrquired by the statute; and, in the bill I have
ers, because they are the chief cause of drafted, hereafter to be noticed, it is pro
delay in our trial courts,—the "bull wheels” vided that no motion to strike shall ever
in the machinery of delay. take the place of answer or reply, or oper 1. Now, I suggest four (4) bills to elimate to save a party from default.
inate this cause of delay. They are: Motions to require a more definite and
1. A bill to abolish demurrers, and to specific statement stand on an entirely dif
provide that all matters heretofore preferent footing. Undeniably, a party has a
sentable by them shall be presented in the right to have an explicit statement of the
answer or reply; and providing that they cause or defense against him, so that he
must be presented at Rules Sessions fifteen may be fully prepared to meet it. The bill
days before the convening of the term; and before referred to provides that such mo
limiting the time within which defective tions shall be filed a week in advance, and
pleadings may be amended to twenty-four other bills provide for its speedy disposi
hours. tion. These bills do not undertake to This prevents the demurrer from being abolish either of these motions, but they employed to take the place of an answer do provide for a speedy disposition of them, or reply to affirmative matter pleaded in and limit the time within which defective answer. It removes one of the instruments pleading may be amended. As the matter of delay, and yet takes away no right. If now stands, it is quite possible for a party your defense is that the petition does not to move for an amplified statement, and state facts sufficient to constitute a cause when the motion is complied with and the of action, say so, and that will be your matter sought is pleaded, the party who | answer. If your defense is legal insufficiency of the pleading you are answer- tions. Provision is made limiting the time ing, and, also, that the facts averred in the that may be given by the judge in which a pleading are untrue, or a part of them are party may plead. untrue, put it in your answer. The bill
I feel certain that, if these bills were enprovides when and how the legal questions
acted into law, nine-tenths of the delay inshall be taken up and disposed of. The cident to the making up of issues would be idea is to get the case at issue. Aside from
eliminated. They established such a “Rules the specific requirements of this bill, its
Session” in the State of Kansas, and sevtendency will be to induce the pleader to eral lawyers in that state write me that it plead on the merits.
has facilitated the dispatch of business won2. A bill requiring that motions to derfully. Governor Aldrich was kind strike and motions to amplify shall be filed enough to call my attention to the fact that one week in advance of the time required | a legislative committee of the state of Florfor the pleading of fact; that motions to ida has been investigating into the best strike shall never take the place of answer means of eliminating unnecessary delay in or reply, and shall never operate to save a their state; and have made a report of their party from default; and limiting the time conclusions. The chief features of their to be granted a party for amending a de- recommendations on this score are that any fective pleading, when the motion is sus party may file any motion or demurrer, or lained, or answering, if overruled.
other dilatoty plea he chooses, but it must 3. A bill to require the District Judges be accompanied by a pleading on the merits. to hold Rules Sessions fifteen days before Then all his dilatory pleas must be heard the first day of each term, and to call up and disposed of at rules session or not at all legal objections presented in answer or all before the trial. The fact that the pleadreply, and all motions and limiting the ing on the merits must accompany the dilatime, as before, for time in which to plead. tory plea robs it of its power for delay, and 4. A bill providing that motions to
facilitates the making up of the issues. The strike or amplify or directed at pleadings
chief difference between that idea and the in any way, filed thirty days or more before
one incorporated in my bill, in so far as it the Rules Session, may be submitted to Dis
relates to demurrers, is that mine requires trict Judges anywhere in the district, by
that the demurrer shall be included in the registered inail, and the judge's decision
same paper, and theirs permit it being set may be returned the same way; and limit
forth in a different paper. The imperative ing the time for decision, as near as may be,
requirement of either is that all dilatory and providing five day's notice in writing to
pleas must be disposed of before the first the party filing the motion, which notice
day of each term. The establishment of a shall state whether oral argument is to be
Rules Session brings the judge to the county made, and, if a brief, written argument or
seat where the case is pending and where citation of authorities is to be presented,
the pleadings are. The provisions for subthe notice shall contain a copy thereof, and
mitting motions by mail send the pleadings that no argument, brief or citation shall be
to the judge. Together, they provide ample submitted to the judge upon such motion
means for the submission of such matters. save that set forth in the notice. Proof oi If these words reach any trial judge the service of this notice must accompany whose desk (not his docket) is congested Le papers when they are transmitted to the with demurrers and motions to strike, and Judge. This facilitates the presentation of he wants a way out of his difficulty, pending ail motions speedily, and the result of it will appropriate legislation, I refer him to a be to discourage the filing of frivolous mo. | method adopted by one of the foremost and