246
The Green Bag,
As suggested above, Judge Doe was not a slave to precedent, but, on the other hand, had a passion for reform, sometimes, as has been thought by others, carrying his ideas to such an extreme as to be almost a hobby. By far the larger part of what he accomplished in this direction is accepted as beneficial, and very little will be undone in all probability. He was not, however, with out the defects of men of his temperament, and the pendulum sometimes swung in both directions. Thus he wrote some of the briefest opinions to be found in the New Hampshire Reports, some of which are re markable for their terse and condensed ex pressions and others equally remarkable for what is omitted. He also wrote the longest opinions in the series, some of which lack clearness and pith from the evident too great care taken to eliminate all sources of error by approaching the subject from all possible directions. Under the influence of one of these moods and by personal supervision of each case, one volume of the reports contains chiefly brief opinions. The two notable exceptions in the volume are his own opinions. The rule of extreme brevity did not prove to be acceptable to the bench or the bar, and in the succeeding volumes there is no indica tion of the extraordinary use of the " blue pencil." He was always anxious to have his opin ions exactly right. Some of them were rewritten many times before he was satis fied with the results. It was this trait which made him withhold many opinions from the press, thereby delaying the publication of the reports till they are now several years in arrears. When Judge Doe came to the bench, the old common law pleading, modified only by the statute allowing a defendant to annex to a plea of the general issue a brief statement of his defense in lieu of a special pica, was the law of the State. Half the labor of the bar was bestowed upon questions of plead
ing, and the lawyer who mistook his form of action sometimes lost his case from that cause alone. The merits of the case were often wholly lost sight of and never brought to trial. Under the leadership of Chief-Justice Bell, a few simple rules swept away the unneces sary verbiage of the equity pleading. Justice has hardly been done to the great improve ment that was effected by the reform thus inaugurated. The rules are few and readily understood and the examples given of what bill, plea and answer should be are master pieces of concise pleading, from which, how ever, nothing essential has been omitted. It remained for his successors, influenced largely by Judge Doe, to perform a like service for the common law practice. He began by amplifying the power of the statute authorizing amendments. On a demurrer, because the wrong form of action had been selected, he inquired of the contestant what form he would suggest as correct. "Very well," he said, on receiving the answer, " Let an amendment be filed, making it as sug gested, and we will go on with the case." The court suggested one thing after another : that a declaration at law could be amended into a bill in equity; that a bill in equity could be added to the counts at law by amendment, when necessary to prevent a failure of justice, or the two could be joined originally. Step by step, the change went on until by the combination of the reform in the equity practice and the decisions modi fying the common law pleading, the New Hampshire practice now has all the flexi bility of the code practice without the rigid ity of the hampering statutes. It is all con trolled by the court, and all debate as to the meaning of a statute is avoided. All that is needed is for the plaintiff to complain that the defendant has done him some wrong for which he is entitled to relief, and secure service of the writ, and the court will see that he does not fail for lack of a chance to make a legal statement of his claim.
