went further and granted plaintiff the right to amend his petition and a new trial. When this right was granted by the Supreme Court it was obligatory upon the court below to see that it was not defeated. Both the letter and the spirit of the decision of the Supreme Court were disregarded by the action of the trial court in holding that plaintiff's cause of action was barred by the Statute of Limitations. Plaintiff was not given a new trial, but was thrown out of the lower court on the ground that his amended petition was barred by the Statute of Limitations. This, in effect, deprived him of the right to amend his petition, for if his amendment had been properly allowed, it would have dated back to the commencement of the original suit, which was brought within the time prescribed by the Statute. If the cause of action was barred by the Statute of Limitations when the Supreme Court directed that plaintiff have another trial, the question may be asked: "Why, then, did not the Supreme Court simply affirm the judgment for the defendant?" Surely no object of justice could be furthered by having plaintiff amend his petition and begin a second suit, if his cause of action was already barred by the Statute of Limitations. In short, since the Supreme Court directed that plaintiff have the right to amend his petition and a new trial, it will see that such mandate is carried out by the lower court. The Supreme Court will not sustain any holding of the lower court by which justice is defeated or its order to the lower court is avoided or altogether disobeyed. To do so would be to relinquish its own authority in favor of the lower court. Plaintiff, immediately upon ascertaining the decision of the Supreme Court amended his petition and began a second trial, and, under these circumstances, he is entitled to have a trial upon the merits of his cause of action. It may be that defendant prefers to have this case decided upon some theory which prevents the real merits of the case from being considered, but this is not at all in accord with the tendency of great modern jurists, who use every endeavor to see that justice is done upon the merits of each individual case, and that no one may lose a righteous cause of action through a mere inadvertence, not in any way affecting the substantial justice of the case. In the language of Circuit Judge Caldwell, in McDonald v. State of Nebraska, supra: "There are in the history of the jurisprudence of every country certain epochs which mark the beginning of distinct trains of legal ideas and judicial conceptions of justice. There was a time in England and in this country when the fundamental principles of right and justice which courts were created to uphold and enforce were esteemed of minor importance compared to the quibbles, refinements, and technicalities of special pleading. In that period the great fundamentals of the law seemed little, and the trifling things great. The courts were not concerned with the merits of a case, but with the mode of starting it. And they adopted so many subtile, artificial and technical rules governing the statement of actions and defenses for the entire system of special pleading was built up by the judges without the sanction of any written law-that in many cases the whole contention was whether these rules had been observed, and the merits of the case were never reached, and frequently never thought of. Happily for mankind, and for the law itself, that epoch is past in England and in this country, and we now have an epoch in which substance is more considered than form, in which the justice and right of the case determines its decision, and not some technical error or mistake in the pleadings. In England today the amendment complained of in this case would be allowed quite as a matter of course, and the suggestion that defendant had gained some advantage by the mistake would not be entertained for a moment. There, as here, every error or mistake in the pleadings which does not affect the substantial rights of the adverse party may be cured by amendment; and what is meant by substantial right is a right going to the actual merits of the case. Such a right is not acquired by a mistake or error in pleadings which has not misled the other party to his prejudice. And the prejudice must be actual, and irreparable, and not merely theoretical. At this day the party who seeks to profit by an error or mistake in pleading must be able to invoke the principle upon which the law of estoppel is founded. And the emotion of surprise, once so assiduously cultivated by lawyers, has lost its virtue. Extreme sensitiveness to that emotion no longer avails to turn a suitor out of court, or to delay justice." It is, therefore, most earnestly urged by counsel for appellant that in the light of the decisions above cited, and the manifest error of the lower court, both in allowing the defense to be set up by demurrer, and in holding that the cause. of action was barred by the Statute of Limitations, this Court will reverse the case with such directions as justice and the law may require, and give the appellant the benefit of a trial upon the real merits of the case Respectfully submitted, CHARLES E. FEIRICH, Attorney for Appellant. The Nature of Law. By HUGH EVANDER WILLIS. Professor of Law, University of Minnesota. T1 HE student of law has before him for consideration two great collections of contending, conflicting phenomena-one representing the rights of the individual, individual initiative, the power of the separate wills of the myriads of human beings in the world; the other, the rights of society, social restraint, the power of law in its early forms and as administered in the law courts of to-day. In other words, he is busied over the problem of liberty, of striking the proper balance between the individual and his fellow men; for true liberty consists in the absolute freedom to do as one chooses so long as he does not interfere with the rights of other men or of nature. The individual is in constant activity, constantly in motion, constantly claiming more than his share of the advantages and privileges of nature, constantly invading the domains of the capabilities of others. He not only claims the rights of life, liberty, reputation, property, marriage, parentage, livelihood, all political, industrial, educational and religious rights for himself, but, what is vital to this discussion, he neglects to recognize these rights in other men. References: Andrews' American Law, 86, 105, 125, 152; Bigelow's Centralization and the Law: Holland's Jurisprudence, 39-40, 5272, 73-75, 82-84; Holmes' Common Law; Kinkead's Jurisprudence, etc., 187-188, 295; Maine's Ancient Law, Early History of Institutions, 23, 233-235, 303, 371-400, Early Law and Custom, 160-191, 192-228; Pollock's Essays in Jurisprudence and Ethics, 1; Robinson's Elements of American Jurisprudence, 124; Wilson's Works, I. 55-56, II, 300; The Oldest Code in the World (Hammurabi); the Pentateuch; The Statutes of the Various States. Had men always lived according to and obeyed the moral law of their own constitution, had they always listened to the voice of conscience and been restrained by its sanctions, there might never have been any need for human laws; but, more than now, in primitive days, conscience spoke to the race in a voice so low, or the ears of primal barbarous man were so dull of hearing, that the moral law had very little control over him. Hence the problem: How should the majority, or dominant power, keep men from interfering with the rights of their fellow men? The manner in which society has attempted to accomplish this has been by enacting human law with penalties more severe than those of the moral law seemed to be. What, then, is our question, has been the essential characteristic of this manenacted law? In its real nature, is it positive or negative? Does it command. man to do some things, or forbid his doing some things? Does it tell man what he must do, or what he must not do? Is its purpose to make men do right, or to prevent their doing wrong? Does it give men rights, or protect their rights? Is it creative, energizing, inspiring, or destructive, restraining, controlling? Does it tell men to be perfect, or simply punish certain of the worst imperfections? Does it give man freedom, or limit the exercise of his freedom? At first it may be thought that such a question is not practical, but, even though it does not concern the every-day mat ters of the law, it does concern so fundamental a conception of the entire body of the law that I think no one would deny its importance. A sure and logical understanding of the primary and underlying principles of the whole of any subject is the best way to acquire a mastery of that subject; and such knowledge, though not used in any particular part, or application, of it, will yet so shine through and illuminate the parts that the possessor will often exhibit a skill and strength that otherwise would be impossible. For an answer to this general question we are not limited to abstract reasoning, but there is a wealth of historical material at hand. We are able to go back to almost the beginnings of human law and trace its development step by step, discovering its real nature at each step, from the time when it first began to be formulated in rude simplicity down to the present with its multifarious and complicated variations, unfortunately not lying in one great system even in the common-law countries, but scattered through the common law, constitutions, statutes and ordinances in the wierdest confusion. The earliest laws discoverable among the different lawmaking nations of the world all seem to have a tort aspect. Laws always seem to follow natural lines, and we see laws gradually coming in to take the place of individual violence. The first attempt to restrain and limit the conduct of others was purely individual, and was due to the fact that each person felt that he had a right to life, health, reputation, property (at least for his family), livelihood and the marriage relation. While men felt that they were entitled to all of these rights, they did not realize that their fellow men were entitled to the same rights, but instead did anything that they had the physical strength to do. The principles of the As a moral law exerted little control. consequence the peace and safety of society became exceedingly unstable. Murders were common. Robberies, assaults, batteries and the many acts threatening the marriage relation-than which nothing could more intensely inflame the passions of men-made society dangerous. No man could be sure of his life, property, or other rights unless he was able to secure them by the strength of his own right arm, or the assistance of his kindred. In such a state of society the first laws began to take shape. Perhaps the earliest laws were only the consensus of opinion as to what a man ought to be allowed to do to redress his own wrongs. This soon took the form of authorized vengeance. Successive executions of this public opinion finally crystalized into precedents. Precedents were altered, added to, and preserved in written ordinances, statutes and constitutions, the number and character of these varying as the dominant element in society changed from the patriarch, to the aristocracy, and finally to the democratic majority. But for a long period of time, whether the individual had to look to himself or to the community for the redress and protection of his rights, the only prohibitions against acts were those against torts. The laws seem to have been penal, but the penal law of ancient communities. was not a true law of crimes—a punishment of public wrongs-but a law of torts, the dominant power (or State) being merely the arbiter. So that, if the criterion of a crime be that the State and not the person is the one suffering. from the wrong, in the beginnings of the law crimes were unknown; the stability and security of society, the adjustment of the rights of men, freedom, depended upon the prevention of private wrongs rather than upon the prevention of wrongs against the State considered as an entity. The idea of a separate offense against the State, or aggregate community, was not conceived of until the State had redressed, or prevented, private wrongs so long that it came to consider that it had rights somewhat analogous to the individual man. All of these laws of torts, not only in the beginning, but even to-day, are negative in character. Men are not told what they must do but what they must not do. In general men have been allowed to do anything that they wanted to do, to be absolute judges of whether they should or should not do a certain thing. It has been only when they attempted to violate certain rights of others that they have felt the restraining power of the dominant element in society acting for society as a whole for the purpose of controlling the conduct of the offender for the protection and benefit of the many. The possibilities of human action and the difficulties in the way of controlling it were too great for society to leave the task to individual defense, or for society to attempt anything but the minimum of regulation. Hence it said nothing about the great mass of human acts, but concerning a few which it considered the most heinous it said "thou shalt not," and punished the disregard of the command, at first, with the most severe punishments, generally death in one way or another. Even these prohibitions were generally found only in the punishments prescribed. Modern punishments are less severe because of the fact that the law of torts has split up into crimes and torts, and the former has taken all the severe penalties of the early law, and the latter is confined to damages, the progeny of the primitive surrender of the offending thing and the buying off of the avenger. Men are told: "Thou shalt not" assault thy neighbor, nor falsely imprison him, nor maliciously prosecute him, nor slander or libel him, nor trespass upon his property, nor commit waste of his property, nor convert it, nor erect a nuisance, nor, under certain circumstances, be guilty of negligence; but nowhere is there a catalogue of the things they must do. It is true that many of these laws, instead of following the moral law, have been the clearest perversions of it, but those who have enacted them have apparently had their ideals, although they have seen darkly, and great as has been the suffering caused by cruel and unjust laws they have been as nothing to what they would have been had not legislators confined their laws to prohibitions. This thought is well expressed and summarized in the words of Justice Wilson: "In a state of natural liberty, every one is allowed to act according to his own inclination, provided he transgress not those limits which are assigned to him by the law of nature; in a state of civil liberty, he is allowed to act according to his inclination, provided he transgress not those limits which are assigned to him by the municipal law. True it is, that, by the municipal law, some things may be prohibited which are not prohibited by the law of nature; but equally true it is, that, under a government which is wise and good, every citizen. will gain more liberty than he can lose by these prohibitions. He will gain more by the limitation of other men's freedom than he can lose by the diminution of his own. He will gain more by the enlarged and undisturbed exercise of his natural liberty in innumerable instances than he can lose by the restriction of it in a few." |
