Nashville daily patriot. [volume] (Nashville, Tenn.) 1855-1857, 1856-01-02

will cease to have any advantage over the young
lawyers; that legal documents will be written IN
plain, concise, and farmer like language; that no
more suits will be msconceved, but all suits must
necessarily be brought right; that there will be 10
more nice Distinctions but that the proceedings OF
courts will be as simple and unsophisticated as
country ireside; in short that the passage oil this
bill will be an achievement but little inferior, in
point Of importance to the result of the Revolution;
and one honorable Senator, IN his zeal, elo"ingiS
refers to the Declaration of Independence, and Ii
would seem, from the alusion, imagines he sees
some resemblance between our sitting here to-day,
and tie sitting of that iIlustrious Congress who
framed that immortal instrument. Another honora
BILE Senator tells us just about 10 shake eli
the last remaining shackles OF the dark ages and the
feuds svstem-that the benefit OF the Clergy has
been abolished-wager Of battel primogeniture, en-
tails aud lastly the rule in Shellys case, are all
gone and now, saws the honorable Senator, let US
abolish The Common Lam practice, as the last great
Growing act Of reformation and emancipation
Such Mr. Chairman are some of the brilliant results
in store for US If pass this bill. | am sorry Sir
that cannot foresee and enjoy the bright views of
gentlemen who support this BILL On the contrary,
| must be allowed 10 warn gentlemen that all is not
gold that glitters; that they will fnd great differ
ence between the sober realities OF this law, when
it shall become law, and their present happy an
ticipations; in short, that they will be painfully dis
appointed.
But, Mr. Chsirman will proceed to speak more
particularly Of the provisions Of this bill.
The establishment of a Court of Common Law and
EQUITY having criminal and appellate jurisdiction,
is sorry REFORM Sir. 1t is exactly the same court
that existed in this State for than thirty years
after the formation of our State government, and
which, from the increase of our population and
commerce, was found wholly inadequate to the
wants of the people, and was accordingly discarded,
The old Superior Court became exceedingly unpopu-
lar Litigation was found to be tedious and expen-
sive and equity causes, in some OF the larger cOuD
ties, were for years undetermined, until the estab
lishment of Chancery Courts. If such was the case
them Sir, what will it be now, that our population is
more than doubled, and our commei ce more than
quadrupled? But this, Sir, is called REFORM. Re-
turning to antiquated and discarded system is
called reform. have in my mind associated with
the idea Of reform, something like progress AMI
advancement, but this, Sir, to use a saying have
heard, is an Advance backwards after the of
the crawfsh.
Next Sir, comes that grand proposition. ''The
distinction between the different actions at law,
and between actions at law and suits in equity are
hereby abolished" And what for? And why
And how? Gentlemen tell US these distinctions are
of English origin, and exceedingly nice and techni
cal that young lawyers have to study half year
to understand them; that many even of the older
members of the profession do not understand them,
and consequently, that suits often brought
wrong aud the unfortunate plaintiff is turned out of
Court with costs. We are thus called upon to leg
slate to suit the capacities of lawyersl II it
possible, Sir, by legislation to enable the indolent
and stupid to practice law successfully, the policy
would be very Questionable. For the more we en-
courage incspacity, the more incapacity we will
have. But, Sir. it is utterly impossible to abolish
these distinctions There is intrinsically differ
in The nature of the different injuries to be
dressed by our Courts of Justice. II is an injury
to owe your neighbor end fail to paw him promptly,
and it is injury to pull his in the street. for
each of which civil action will lie. Gentlemen
tell us the same form of action will do for each!
What, Sir, do we understand by form of action
Why, Sir it is nothing more or less than the
sary language used by the injured party in stating
his injury to the Court. The classification of the
forms OF action is simply classification of the forms
of injuries which one man NAV inhict upon another.
How are we to abolish the difference distinction
between the injury of fencing up our neighbours
land, and the injury Of defaming his reputation?
As well might attempt, by legislation, to abolish
the difference between the different sciences: for
instance, the difference between natural and moral
Philosophy, or between Mathematics and Metsphys
cs as to attempt to abolish all distinction between
the different actions at law, and between actions at
law and suits in equity Viewed in this light Sir,
the whole proposition resolves itself into miserable
nonsense. Nor will the young lawyer experience
any relief from this system The statutes of limi-
taton are different in their terms when applied to
different forms Of injury. For an injury to land IT,
tie, years. TO personal property, three years;
TO reputation, six months, &c. So that the distnc-
tons sought TO be abolished, will still have to be
closely studied, with view to the application of
the law of limitation, and for other purposes. The
form Of proceeding proposed in this bill abolish
the forms of actions no further than they are now
abolished in our courts of Chancery. Indeed, the
system of pleading proposed is precisely the same.
Yet any lawyer knows that it is just necessary
for him to understand the different forms of action,
to practice in Chancery as in the courts OF law.
Next Sir, comes that feature of the bill which
provides that the pleading shall be by petition and
answer, instead Of declaration and pleas. This will
be found 10 be reform" only in name Common
sense and Justice and fairness will require that the
petitioner shall set forth in his petition, fully, fairly
and directly every fact necessary constitute the
ground of bis complaint and the defendant will
have to present his answer in like manner and un.
der similar rules And this is all now required in
a declaration or plea. Draughtsmen will make no
substantial change in their forms. Instead of be-
ginning with The plaintiff by his Attorney com.
plains" as the form now is, they will commence
with 'The plaintiff by his Attorney petitions" and
then 90 on with the forms now in use-choosing q
form from our books to suit the subject matter of
the case
Nor has this idea the prestige IF modern inven.
ton TO recommend it. 1t is the mode OF practice
in force wherever the Roman civil law prevails. II
prevails in Louisiana and other countries where
French institutions preserved. Al nd, Sir, it is
well known that the practice in Louisiana and other
places where this system prevails, is far more com.
plcated aud technical than own. 1t would
seem then, Mr.. Chairman, that while gentlemen are
denouncing system Of English origin, and its
friends as old Fogies, they have actually gone be-
hind the dark ages TO the days of Justinan, for a
system which they call modern reform. Gentlemen
are unfortunate in the direction in which they ad-
vance
But the bill provides that the lawyers shall use
concise and explicit" languagel THIS enactment
is simply ridiculous. Think Sir, OF the idea of reg
ulang the various styles of lawyers by legislation
The minds Of some lawyers are so constituted that
they cannot the concise lEconic style; others
cannot avoid stiffness and brevity OF style. 1t
would be almost as easy for the leop I'd to change
his spots as for the craftsman to change his STYLE
For the sake Of uniformity, the bill should read :
"Be It enacted, that all duseness and verbosty Of
style, be and the same Is hereby abolished" Sc
riously, Sir brevty and conciseness have always
been recommended and taught by writer's on the
science OF pleading. Even Mr. Chitty, who has
been so much berated by the retormers Of the day,
recommends brevity, and lays it down as great
rule that facts only need be stated and that all else
is surplusage. Oh. Pl 1876. But as the recon.
mendation Of Mr. Gritty has not been implicitly
obeyed, so will the enactment of this General As
sembly be totally disregarded. We shall make
fools of ourselves by endeavorng TO enforce rule
of rhetoric by law.
So far, Mr. Chairman / have endeavored TO show
that the bill will not effect what it proposes. l
shall now undertake TO point cut the evils which,
in my judgment, it must produce, and which its
friends do not anticipate. And frst / call the at
tention of the committee to that clause in the bill
which requires the petition and answer to be sworn
to. ! regard this provision, sir, with the utmost