Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1857-05-19
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LAW REFoRM. [oosEruEp. ]


the evils under our system It's true that the above
act together with that aboshing the distinctions be-
tween tresspass and case. and permitting instru-
ments under seal to be inquired into as wen in a
court of law as in court Of equity, and likewise
the acts Of 1852 chap. 365, and 1866, ehap-do
much to relieve remedial law yet these reforms
are Acknowledgements that the whole system is wrong
and that you cannot get along with it without per
hitting these amenments, changes, and departures
at every step.
Amendments are rather to be regarded as a con-
trivance to avoid the pressure of an inconvenience
than judicious reform in a defective system Our
system remains only by continually violating its own
principles, for amendments are only notifications of
departures. This continual patching and mending
an old, defective and wrong system is unworthy of
the age, and it can never be Of any great, lasting
benefit for under it evils win spring up, that
fatal to the administration Of justice those
that have been remedied by the arm of legislation.
To ourmnds the remedy forallt hiss obviousenough;
all unnecessary forms must be abolish, our new forms
Of action and system of pleadings must be super
oeded and that of petition and answer substituted
in their place, which has at least common sense.
simplicity justice and dispatch to urge inis favor,
One form Of action viii effect every object of the
nine, and even much more, and viii be free from
their evils of unnecessary forms and techniealites.
There should be but door to the temple of JUS
ice and the present nine intricate windings to it
ought to be destroyed and then we would not see the
every day occurrence of suitors at the end of
protraeted contest, being turned out of court with
heavy bill of cost to pay, because they are in the
wrong court, or have brought the wrong form of ao
ton or of some technicality. There would then no
longer be any uncertainty and perplexity as what
form Of action to bring what court to enter, and
much useless learning and many intricate questions
could at once be disI lsed with.
To those who really think our nine forms of &C
ton are indispensable to the proper administration
Of justice, viii throw out the following sugges-
tiOns for them to answer and digest.
The actions of trespass and case, which presented
more difficulties the beginning of law suit, than
any other two actions, to distinguish the difference
| between the two, can now no longer perpIex any
one, for by act Of ls49-5O page 35, you may bring
case where either one would be before, and yet no
one win now contend that anything is lost by the
abolition Of this distinction; though by the change
there is in effect one less action under our laws
Again take the action Of debt and assumpsit and we
think that debt might easily be substituted for the
two, for even now there is scarcely any practical
difference between them, and our Supreme Court has
said, " Debt and iads5atus asumpst are concurrent
remedies upon all implied contracts, where the sum
to be recovered is made certain either by the con-
tract of the parties or by operation of law, Yerg
! A. Assumpsit was substituted for debt, to avoid
the wager of law, and that having been abolished,
debt now is used to get rid of the statute of Imita
tons of three years Again. it is said in 10 Yerg.
! 453, ''They are concurrent remedies in cases of
simple contracts for the payment of money either
express or complied. From these quotations, it is
very clear that our legislature might readily substi-
tute the action of debt for the two, and no injury
would be done to the remedial law.
The actions Of replevin, detinue and trover differ
very little in practice and the distinctions between
the three might easily be abolished and one be sub
stituted in their place.
The only difference in the three now is, that in
replevin you first take the property into possession,
and contest therght while, in detinue, the property
remains with the defendant and if the plaintiff sue
ceeds, the judgment is for the property and if
not sustained, then a sum to be paid for it in
money, and in troyer, you merely seek the value of
the property without seeking its recovery at all.
! Replevin is the only one that is used much in
practice, and by slight notifications and addi-
tons to it, by the law making power, it could
easily be made to supercede the two, and answer
every purpose Of the three. Ejectment and cove
rant the remaining actions, are not similar and Of
course cannot be consolidated as we have shown the
others could be, yet they would present no more
difficulties to the substitution of petition and
0wer than the others would The above remarks
will show, that practically we have but five actions
instead of nine as we had many years SINCE before
any reform was made, and justice is now more sure
ly administered with less cost and ve1atiOn, than
when the nine forms in full operation here or
the ffty-One under Henry III. This ought to con-
vince every rejecting mind that the administration
of justice does not at all depend on any forms of &C
ton, or the number of them, and that it can as
well, if not much better, be administered by one &C
tion and one court, and then no man will ever be
told that he has good law suit, but he has come
into the temple of justice at the wrong door, and
must therefore walk out with COSTS or that he could
succeed if he was just in the other court and if he
accepts the invitation to try the other he does so by
paying two lawyers fees and bills of cost instead of
one.
We shall now proceed to the examination of the
second question, hoping that what We have said will
lead the public to an examination for themselves
and with this we shall be contented for the old sys
TEN must fall when its defects are known, and the
simplicity and certainty Of its rival are once known
and understood
Having proposed to substitute the petition and
answer, in lieu of the present system, we ask the
careful consideration of the public the details and
effects of the proposed change.
We propose that every law suit should be com
menced by filing with the clerk of the court, pc
tition which should be plain, concise, short and
truthful statement of the plaintiffs cause of action
and what he is asking of the defendant, which said
petition, we would require to be sworn to, in all
cases, either by the party, his agent or attorney.
We would require copy of this petition, to be
left with the defendant when summoned to appear
at the next term of the court and for said defendant
at the return term to answer on oath said petition
and either admit or deny the allegations of the BILL
specifically and clearly, and likewise set out such
defences as he might have such equities and cross
claims as would be right and pertinent to the ques-
tons presented by the petition.
If the petition should not present any cause of az
ton on its face 1t could be demurred TO- with leave
| to answer over SO that good cause should not he