Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1853-11-18
LAW REBORN


braced in it that is, the amalgamation of the law
and equity jurisdictions, which now exist in this
State This measure has now been before the legis-
, lafure some six years or more. 1t was first intro
duced into tue legislature by the Hon. AUSTIN MILLER
then the representative from the county of Harde-
man, and chairman of the Judiciary committee, a
gentleman well known for his sound practical sense
and efficiency as a Judge and member Of the legs
latre.
The measure ike those which followed, was IN
trodpeed as a test measure. 1t passed the House
and was defeated in the Senate 1t has since passed
the lower House at two sessions and at the last by
an overwhelming vote 1t was defeated by the
passage Of q sort Of substitute, containing some of
the provisions of the Reform Bill which contained
an outline of the system.
New York was the first common law and chaucery
State which adopted the blendid system, which was
in 1913 Since that, some five or six other States
have adopted it. limo State has it been abandoned
when once tried; and in all so far as our inforna-
ton extends it has given general satisfaction. Only
a short time since the mails brought us news of one
of the Judges of the Supreme Court of New York,
addressing "The Society Of Lawyers" in London,
'4sr the amendment of the law Nord BRoUGHAM, in
the chair,) in favor of the blended system, and
testfying to its complete and successful operation
in the State of New York.
We shall give a summary of the provisions of
Maj BUroRDs bill in few days and ask for it an
impartial consideration from that great profession,
which exercises, and justly, so much influence in
regard to every thing connected with the admins
af In mos tir,a viya an,
extract from speech delivered in the New York
convention, which adopted this reform. 1t is from
one of the ablest lawyers in the State, and will
speak for Itself:
b" TO understand this question, said he, 1t was
necessary to look at what these things called law
and equity are as contradistinguished from each
other. In strictness there could not be said to be
any such distinct systems as law and equity They
Were more properly called two distinct systems of
practice the called the practice at law, and
the other the practice in equity. By the practice
at law, a man was only enabled to recover a simple
money demand-wth the two exceptions of eject
ment and Teplevin. In eiechnent, the plaintiff may
recover land-the thing itself; in replevn, he may
recover chattel-the thing itself; but in all other
respects party can recover IN the law practice,
nothing but 3 sum of money. And to recover that,
he must adoDt one or the other of five or six partic
uar forms OF acuon-very technical and special in
FORM and in which the pleadngs are almost inva-
liaby fictitious filed with false allegations from be-
ginning to end. They bore, to be sure, a certain
conventional relation to truth, which they were
supposed to represent and which conventional re-
ation was perfectly well understood by learned law
yers and to!erably well understood by the profess
sion generally, bat which no ldyn1an would under
stand For instance, If one were to rob him Of his |
watch the forms Of pleading at common law, |
would allow him to waive the force, and to bring |
f,ft l,a Of l,a n
chase lie could charge, that on certain day, he |
sold and delivered TO the defendant, certain watch |
In consideration whereof the thief promised TO paw
when he should be thereto requested, as much as
such watch was reasonably worth; and that it was /
reasonably worth two hundred and fifty dollars /
The defendant would answer, GSSumpSit-that /
he did not so promise. Every word in the declara-
ton would be false, and the plea would be manifest
" true; and yet there was no Judge in the land,
that would not instruct the jury that though this
was a very outrageous act. the party whose watch
it was had right waive the wrong and to have
twelve men say en- their OItllS, that the defendant
did promise TO pay, what the watch was reasonably
worth in manner aud form as he had alleged, and
that their verdict must be for the plaintiff This
was a very fair specimen of the fiction which ex-
listed in the common law modes Of pleading He
could consume hours, IN giving similar instances;
but one was sufficient Indeed, almost through
out the allegations in the declaration are false to
every common and ordinary intent But they
were said to be technically true; because by con-
of law the relation between the fiction in
the pIeadings aud the truth it represented was well
by lawyers and judges; and between
them, they could instruct the jury to bring in such
verdict as worked out the ends Of justice
1T might be asked, why such forms were adopt
ed. Their origin was Of remote antiquity; but
there was doubt of the true reason. Jurors were
very ignorant and 1t was necessary. by
special and strict forms to bring down questions in
issue to q very nice and simple point And these
plra1ings were modified from time to time until
they had received the character that was now i'm
pressed on them. They received their FORM at that
period, when a scholastic pedautry had overrun and
perpeXed with its arbitrary rules every branch of
science And hence, Of course a very special sys-
TEN ofpleadings came to be adopted Ii was how
ever wholly inadequate to the ends of Justice; and
because it was, the system Of equity jurisprudence
was adopted to supply its defects. That was equi-
tv practice. Under legal practice, man could not
get discovery from his adversary; could not reach
documents; nor get specified relief, except in a few
cases,
10 obyiate these defects in the law clerical
chancellor introduced the civil law practice a prac-
lice which however disfgured in some places by
lnno cessary forms-howeyer disGgured at this day
by extreme proliXty-was nevertheless, in IFS own
nature flexible. highly convenient, and capable of
being made 10 answer all the ends of Justice Their.
. ,
MS case aud asked the relief he desired and the
court if he proved his case gave him that relief :
Under this practice any suit for any kind Of remedy
nay be brought. 1t was always quite easv by bill 7
n chancery to sue on promissory note. Yet. as ,
lac English courts Of law had jurisdiction of
he action, and chancery had no jurisdiction where +
chef could be had at law chancery was never per-
nitted to take coguizance Of such cases. Thus /
rom the appropriateness Of the forms Of the COM
non law TO answer the ends of Justice this equity !
ractice was introduced. But it was not permitted :;
act, except in cases of necessity. Thus the two
ystems grew up together And at the period of =
he revolution in England they had courts of COM
non law and courts of chancery as we have them
ow; each exercising extensive jurisdiction, and
legal writeror emnence, by a typographical
under, made to say, in regard 10 the court of
haucery, an expensive one. lC
1--WE adopted the old English FORMS hence, we
this day these two distinct forms of practice c
lie supposed they could be abolished and one form
lade to answer every purpose. He thought the fo
eeping Of them separate, mischievous. In no tt
punty Of Europe except Great Britain, did these n
NO separate forms exist The chanccry or civil s
w forms obtained throughout the continent of II
urope over the whole civilized world. wherever OF
lstica was commissioned rn,,,,lo, GO,