Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1857-05-14
CONTRADICTION
Law REFoRM-[cosTnurD.I

The question: as to whether they can be abolished
and substituted in their place, and yet the law
be well administered under that, is no longer an
open one, but as to which Of the two is the better
system is yet mooted question, and it Is to that
we shall direct our attention.
By the common law, if person is aggrieved
either in his person property, the first thing for
his attorney, is to decide what form Of action he
ought to bring, and then to state his case or the
facts Of his case in the teehnicalites Of the law
now there being nine actions he runs the hazard
of eight cases in nine of bringing the wrong action
The great difficulty in the common law Of forcing
the plaintiff at the very outset chose his action,
before he properly understands it himself and like
wise before he knows the defence of the defendant
which may entirely alter his case, ssOven stated by
Luther s. Cushing, one of the former editors of the
ADsqican Jlrist, that we copy it: " That principle
involves the absurdity of requiring the plaintiff to
avow the proper legal inference from the facts Of his
case or in other words, to decide at his peril the
very question: which it is the object of his proceed
ings to submit to legal tribunal that is, he must
first decide his own case, before he can call upon
the court to decide it. If he decides correctly he
may 20 on with his cause; if not, he must become
non-suit and make another attempt. This principle
pervades the whole system of proceedings at common
law from the corruption of the cause, and through
the pleadings to its conclusion in issue of law
fact.
| This mode of statement, was, doubtless, in its
origin, well calculated to the purpose for which it
was destined. The party claiming redress, repre-
scented his case to the magistrate, in his own way,
and the latter then drew up formal statement Of
the matter concluding with direction to the judge
or arbter, Corresponding to our jury as to what
the Judgment should be, provided that the facts
should be found according to the representation
In the modern practice, the formal statement being
the commencement of the proceedings in court the
plaintiff is obliged to substitute himself in the place
of the magistrate and it were, to decide his own
case subject to an appeal, and at the risk Of bill
of costs, if he should mistake. "
There are never ending difficulties that constant
ly attend the system of so many forms of action,
and the bad effects resulting from it, are to be seen
clearly in our courts of justice whereby causes are
either thrown out of court unjusty divided or tried
at much greater cost and trouble than by simpler
and less complicated system.
To the ablest and most experienced lawyers, it is
a matter often of great difficulty, when even the
facts have been fully and correctly stated to Them
to determine what action it would be best to bring
and at this stage of the matter hundreds of fatal
errors have been made, courts andreports can
well and truly establish. To those, who either
through prejudice or the want of information think
that there is no difficulty on this subject would
refer to l Tennessee Reports, 1914 pages where
the court say, The line Of distinction between
case and trespass is SO nice in many cases as to
be hardly discoverable. F" Again, Judge Turley,
man of the highest order of genius, and whose
great attainments for many years the ornament
of our Supreme Court, says in the case of Baxter
Hicks as Pope, 1t is sometimes difficult to distin-
gush with certainty between a declaration in an
action on the case in form eOHtraeu and in form
ez dslsciu" Again, Mr.. Gritty, perhaps the ablest
and most distinguished writer of the age, on the
same subject says 1t too frequently occurs that
from the want of knowledge Of all the remedies aOr
ded by law, even a very sklful practitioner in one
department will fatally misead his client, and the
serious consequences would be readily avoided by
the study of a concise view of the whole Chit.
Pract vol g. We areunable operceve any use
full end to be attained by the preservation of these
forms, while on the contrary, we have often seen
them subversive of the great ends of justice. is
often the case that the shades of difference between
these various forms are very slight, and sometimes
depend on fact entirely unknown to the plaintiff,
and exclusively known to the defendant The plain
ts attorney, however, is forced to select his form
of action and if he here commits error, must
fail. Hence an action may be defeated by defense
merely technical Indeed, a fact which renders the
substantial justice of the plaintiffs claim perfectly
manifest, may defeat his action, by showing that he
should have selected different action.
In chancery and in the civil law practice, these
forms do not exist and no difficulty Inconvenience
has ever arisen from the,want of them. Why is it,
we ask that this venerable relic of the middle ages
is held on to with so much tenacity, when it has al
ready served all the ends it adapted to, and
is now untitled to our intelligence and progress, and
the form of our government.
In answer to this enquiry, we can find nothing
better to reply than the answer of Mr.. G. Long, an
eminent practioneer in England, to the enquiry Of
the common law commissioners, who said, g have
always been at loss to discover what good end is
attained by the great number of different forms Of
action existing in the common law of England.
There seems to be nothing in the nature Ofthings
requiring all these distinctions. We have, indeed
often been told from the bench that it is important
that boundaries of actions should be preserved but
never, think how why it is important The prin-
cpaI use of the rule, by which the joinder of differ
en forms Of action in the same declaration is pro-
hibted seems to be that it tends to prevent multi
farious matters from being presented to the jury at
the same time by which their minds might be dis
tracted and hindered from obtaining distinct view
of the different points of the case; am, however,
much inclined to think that the law, by these regu
atiOns is merely using leading stringsfOr those who
are well able to walk alone.
'Aregard to his own interest would prevent plain
tiff from bringing forward in one action such nu-
merous and complicated claims as would embarTass |
jury, and his legal advisers more likely, from
obvious reasons, to recommend the bringing of too
many than too few actions "
There are four great objections that present them
selves to our mind, to our system, and which can
never be successfully answered by the opposition.
First that the system overloaded with unnecessary
forms Second, that it is complicated, and requires
great expense of time to acquire knowledge of its
details. Third, that by compelling party to select
one certain ground, it excludes him from the use of
Others which may, in themselves, be equally avaa-
BILE Fourth that is confines the course of justice,