New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1847-09-27

"a -, "a, .t.an IS yeas rono4~sir cy ~ lffn - ~
10 r,yert tne pngTe'' sny' ~1i'S ~s ns'o $40,
7, ~. rspo.l. tslu.n al. Frups- d" in1s ui"' 70 SO
,sr ,-Ns uyoa lem s~y general :, fes,f,ins ME
uii discsfs.sa a tnen -ia 80 are pirp,foe - i'P.
-. sr.si..sas IA de;. b which 80 shall propose "'i
hry b. carried OIL ,r-s, r.
TOO ass. Of snes- pdnoiYlss Il hs esNa'nm-n1 y
uniform c0urse Of proceeding. incis9i's ','H
-o5 p.-s1iogJ Ia al css-s Nd 'lei u - So " - ~ g
a. ,ae arsdeiious Of is. I'D equity existed 10 us
St.t-. ny the periot Of ne ~a'Yuon o. ehe le~ =
,,l-uiira vested IN s.p-rate AID oistncs courts y
-. med - f,..o~ Becesssry csnsF4pcnce toei qis-
,i,c. modes of procedure should cxs sppicAoe - M
- ,ar fane done o, rsch OF those colfD tnOe.p IN
80 opt1ion May dliiefsnces IA matters 81 pf-ciee
,s, r. cogoi1,d wlch even under The former oitllns
-. oil iar.sdierOp Eegs unuecs sssTy. But - Aesr
iarisdctsons esia5isheo therc 10 "a our J"9s
msst longer necessity ief onrrene- 20 49,
modes Of psocodure 81 toe character T. "iicn
refer Kocp.n. 10 view the distinctions 10 inca W
have before sovefis5 between the rights u sn'
tns mere means b which those fishts are - .e,
tsinod ard enforced TIE simple Inquiry ~nen ~ p
s.,,s itselL whether mode OF proceeding evin'Do' -
all civil controversies. ard adequate 10 me mo 10 %
Gao be- safely and corvenieuiy prrsefi'' 70 ~" ~
inn. "a In sny IN amer - interfere Wi'n me q1ssu01
,,ht between htx .ni parties nor 10 We inteh' - o'
euss the Eject OF the consutooosi pto'i-oh 'e's,s
I.~ Aod equity jafisdiciion 10 ine soPl,n' 0 ~
"a that provision may b supposed ~ e'Sf
sb,. All tb., We mean - Say s that "e are snishsS
non ,hs Ia sst consideration ina, Mere beec D. o,
difference 10 Ios form VI pr"eeeonss i.sobs = -,
.x.rx sut 90 modes u proceeding hfe ccnc.itc
s 10 place The parties whose rights are lnsosea 10 u IN
. proper add Convenient form before me tl'nhn y
which they 70 b gdicsted ~ pfosent thtf COD
er,lng AL atoms plainly aud lJlgiDiy 10 escn Other
and 10 the court secure y adequate means ue.
or hearing Of Contested point 70 Obiein
or determination sdsped - the J.s',cs - ' $500, o.
10 eject "a. eDiOfccncht " lhof J-~s-'-' - 70
ao6 efii-ient neeps - ,. 81, ,.,oosy
Thi. Object l. lot peculiar y any ioinl y, ~, Isit
whether be legal 81 equitable or = -
NV .xi.fst law buf l. common 10 them AL Ina' car
b. r-etcslly attained 10 every species OF eoh'iOsei,y
% lar - the mere formal 1le " ~, 80. =,
eooduct Of suits 10 concerned. We will not no" sP u
u,.ve We shan reserve that portion vi Toe system
witch 4. one purely Of detail uuul We pf,s.n' ts sP,
che provisions de.igned T. carry II mo nc 1.s
necessary be fy refer 10 some pons 10 "pcn tn'
s..,.n,laon of lsw and equity procedure "ouia seen2
10 b. attended With cncuiy 1870 ~. A.,
IN. INIT d these 10 tbs subject o picad"S ~" ui-
,,asi.bios fesffe now existing between PieAdngs II
\. and Ia equity IT, th-t Ia the iormef iho Pioirsse1
,beetis by eoucise end formal sneineh's oi e"ncs'
sion. Of feet 10 bring the Cause 70
al let or of Nashville in The lsttcf inc i"cs OF thc
g., NAV be stated without technicAiy' aud With
mauleoess ii ereomstAnnsl detail 'enoios 70 estsosh
the proposed conclusion OF iaet Ia uaps ioi9poen
bv the Jules Of pleaoiug which prevail In courts OF law
I'M. f.T equitable plescnss concerned
hs. resulted n.iny from the peculiar power OF court
OF equity IN enforcing ei.eosy 10 49, e'1 n,io,
e,si 10 order more tfeclusy 10 probe me conscience
Al m. defendant Atlsw, with some uninportAni sia'
tuto ex
o, pus cocasi0ns OF fact. have either been perm,d
or required In pleading We propose 10 icooce loe
sy.lem % pleading 10 one Of allegation merely "tnoe'
re-r-uce discovery Ia the mode "hlch vi" presently
Ia suesestd 40 that ihe form OF allegation may
A., .t..ta 10 cases which have heretofore been dstn
ui.h,a AZ gal and equitable And Ia order to prevent
~ or,iudice which might otherei result from the
n.cessy now cxislos Ia equity for the Kind oi plead
ing 10 which hsye rcforfed We fha present series
Of .nsctmcnts providing that IN all csscs either parry
obtain from the other discovery under oath 81 al
IN
sctOn. ,..s H.. -. a., - . - -
.a ...iui.tion OF practice is the mode Of trial. The
,on.,tulon provided by the second section Of arl
Gle r.t that the trial hy jury Ia oil cases la which Il
h.. b,o heretofore used shzl remain inyoiae forever
mi mai uty tIal msy b. waived BY the parties IA all
e,l css.s la the u b. prescribed by l4w and
bs m. tu,h section OF The sxth article that IN" es
,nsoy Ia equity shs De- taken 10 IKE manner as Va
cas.s al law" under ;h,Fe aecunns the Legislature
b.s. power 10 provide lipeTay Tor references Ia H cases
A., - hch that lght has heretofore existed well Ia
&c, of slicty legal character as 10 those VI 81 tqui
table nature which toey deem can be more CONVENIENTLY
ie.,sd Ia that mode la reference 10 tho tNrrcise
II I'm, power int nd 10 provide Tor trial ~ Jury IA
nj, .s,s in which mode OF trial can De- conveniently
ADOPTED, unless ~siSed by tho parties
Ih ,hifd consideration connected With this subject is
,b xi.tins differ ncss 10 t1o form O Judgment and ih'
,c.,s al piofcug IL peculiar IA the courts Oi law and
oui,y Judgments IN the former are, with very IL" eA'
.ptions compensatory, while Ia the latter Ia ns)fy
Of cases they embrace SPECIFIC relief peculiar 10 eaen
800, hi. ssciug feature of our proposed plsn To &c
or IA all Cases Judgment adapted 10 Tue es,4olsuc1
sehts oi the parties and We can ore 10 dihcuy IN III
cooperating into H. as portion oi uniform system q
practice torn OF execution which shall adapt iIse 10
the Judgment
,rd.pendcn,ly therefore. OF the express declaration
of ihe legislative will requiring us to provide Ter uoi
,r eoufss of prococdlug In all whether VI legal
r equitable cognizsnce We can see no ohcniiy when
cannot bo readily overcome IN tno Accomplishment Oh
this object while Ia accordance with tho direction thu'
av.u w us perceive no Ju.t reason Tor pfes.r
iu distinction in the modes OF proceeding the tribunal
in either case being the same The Legislature, In
adopting this provision dOub, acted upon the well
Known tact that ia many cases, without reference al a.
L. the uets OF the controversy parties had been turned
out of courts equity because they should nave gone
into courts of law, AMI out Of courts oil LAY" oeesue
they should have gone into equity They no DOUBT Also
correctly interpreted the tousiitutOn when had "ooi
ished separate court Oi equity aud transferred sen
ersi jurisdiction in law and equity % ,ne supr.mu
eou,t xhsn they instructed We u provide Tor ys""'
l pro.ture which should obyiste the evil referred 10
and ..curr the protection oi rights without re'eho. "
,,a,,c.s.sry and unme aiming forms While, therefore
~, shall cndeAsor TO recommend nothing winch Sh@
r.iudce any substanal right We shall devote our ui
mos, efforts aid in carrying this object into eject
recommending cautious and welicunsoeteu euso'tnons
Tbe next general feature OF the proposed system Il
hs shror alton of the -ng distinctions between io
OF actions a, low We 1s moi insensoic oil the Tact ths
much apprehension has beeu expressed 10 ressra 70 a.
which has been deemed so sweeping as bi'
N would De impossible within the limits To which W
must conhne ourselves In this report 10 discuss tue Oh
cc,ons which nsve been pese n'ed 10 US on us snle
and we shall therefore reserve them until II shah % p.
.epted la form for tho action of the Legislature w
Gamma, frbesr adverng howcVerto tho iacL mat VIII
ines. -nctons have been long upheld, as supposed
he NECESSARY parts OF the machinery Of tue law We hsN
moi hsea able Ia discover anything IN them essential
m. administrator justice Ihett they have been oan
eony,nt.nl IN many respects Is perhaps, not 10 .
denied bu, that they have been used to sn alarming e'
tent "a defeat Justice il not less true. There lie =
branch of legal science embracing more sosirnse Nh
curious e.rnus than that which sppertsns to The es'S
li.hmen, and retention of the forms %, seton
We .hsn have occasion, IN future report to refer
with some psrtcus rity but Tor the present We shs
content ourselves with observing generally th-t u
practical operation Of the rules upon mis- supports
require the planun At the peril OF stature to demon
nnia his cause ut scton by some one Of the srou~i
names hy which toe Different actions are distinguishes
and tn bring himself in pleading within the ieconic
rol., Applicable ~ the form OF action which he has
lcc,d M We could discover In the ides that these 81
tuctions should be retsned any necessary connects
te,~ern them and the substantial rights OF parties
should hesitate ~ recommend thsi they oe discontinue
But when We look al the course ot Legislation BON
Enslsnd and In this St~se, BY which with lew exec
lien, OF no practical Importance every real action ~
been resolved into thu single action 81 electment NJ
many of the personal actions which formerly exi'is
have been abolished blended with oihers, and aeo'
all when consider tbs, IL Is our duty, at no maui
N.-kaW