Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1857-05-31
coKNuYrcAr7oN


Again it is urged that our Chancery Court is the
best Court We have and therefore we mist not dis
turb it. We are willing to admit the proposition,
and is for that reason we are for assimilating
the courts Of law to those Of equity and deprive at
least the remedies Of the former Of a portiOn of
their rigor and injustice.
Some urge as an argument in favor Of separating
Law and Equity, that they are great separate sys-
TENS Of much difficulty and intrieaey and the great
principle Of division Of labor win come in to sus-
tain it, for single mind bent upon the investigation
and mystery Of one can do much more than by study
ing both. Practically, this objection amounts to
nothing, for our Supreme Court, the final arbter of
al difficult questions, both in law and equity must
understand both systems, and in practice in this
country lawyers must understand both law and equi-
ty, or fail; the pursuit Of one alone would never
succeed Nearly half the difficulties and intrieaeies
Of the two systems arise from distinguishing the
shades Of difference between them, and from the con-
slant conflicts between them, all Of which could be
svoided by having but one system instead of two.
There is one advantage TO be gained by the sys-
TEN proposed which will at least overcome the last
! objection mentioned As the Chaneery Courts are
now arranged in Tennessee, there are four Chaneel
ors, who have circuits ranging from fifteen to twenty
countless and they are forced to travel in the
Of year thousands of miles, and consumeSsa great
deal Of time in travelling. Now ask, if this time
or considerable portion Of it, devoted to study
as it might be by having small circuits could not
they overcome and understand at least the system
proposed and would not causes be examined with
more care and attention than they now, and thus
at least save the Supreme Court from examining as
many causes as they do now.
By the system Of petition and answer all causes
involving matters of fact would be tried by jury,
who are much better adapted to examine facts when
the evidence is all produced tgus than Chaneel
Ors are by merely having DISPOSITIONS read. One OBJ
lection urged is that the equity causes viii be greatly
delayed, as they we're under the old Judiciary sys-
TEN; but we hardly think So for first, there would
be at least one more court per year to try such
causes than there is now and secondly there would
be no such thing as law side and an equity side and
all causes Of fact would be regularly tried as they
are marked by jury, and cases merely of law and
equity would be tried by the court after the jury is
dismissed, so the objection amounts to nothing at
all. This last proposition of ours, that law and
equity ought to be consolidated in one court and
mode of procedure, will be met with great opposi-
tion from the bar of Tennessee, much of which op-
position cam for obvious reasons be understood by
the people; yet we hope it viii not deter them from
an examination of the question, which is all ask
for the success and triumph of the Law Reforms.
The errors, inconsistencies, fetiOns, technical-
ties, hardships and delays of justice under the
old system, viii surely disappear before an inves
tigation and comparison with Law Reform as that
the dew disappears before August sun.
The intelligent and thinking people of Tennessee
no longer intend to submit to our system of courts
and forms of action, which, at best, is but a we'll
preserved relic of the dark ages and is not adapted
to the wants and intelligence of the age There is
one other point to which we viii briefly allude which
is intimately connected with this question: and we
viii then conclude observations, viz: that all
testimony, with few exceptions, shall be heard ore
teHus.
Our objections to the present system Of deposit
tons is as follows: 1t is nearly impossible through
the medium Of deposition to the intelligence the
bias prejudice and feelings of witnesses; these are
all lost, and that which in deposition would weigh
much would amount to nothing if the court and Ju-
ry could see the manner, intelligence and so on of
the witness. Again, all the witnesses speak through
the medium of the commissioner, and from the
reading you know nothing of the intelligence of the
witness, and many other things which are very ma
terial to the proper estimate to be placed on the
proof.
A very strong objection to the system of deposit
ton is that when the lawyer or party taking dep
Osition is INSCRIPTIONS, every thing they wish,
tbov-b iIIoroI oDd avoorga5 10 -.
down. This is a very serious evil in our Chancery
Court, and we often might as well not have rules of
evidence for all sorts of evidence is lugged in and
it viii have its effect on the cause though it is iIe-
gal. The great importance of having witnesses face
face with the jury has been felt to be so great in
criminal cases. that has never been departed from,
and Why will not the same reason apply to other i'm
portant cases?
There are only two objections urged against the
rule we propose. The first is, that it win greatly
increase the expense of litigation, and secondly,
that in cases of account and where it is necessary
to examine with great care and pains the proof that
it ought to be by deposition.
As to the objection Of cost, we have this to say,
that in that class of cases now tried in the Chaucery
Court, which would be tried ore teHus by the plan
proposed there is generally but little proof required
for the beauty of the thing is, that the parties them
selves have 10 act Witnesses and therefore gene
rally but little proof would be required. And if
justice is promoted, what if little additional cost
is accumulated? But we of the opinion that cost
would not really be accumulated for where deposit
tons are taken it is generally off from where the
counsel live, and they have to be employed, at a
heavy cost to 60 and take the proof which amounts
to more than the other cost would be-
There is no necessity for heavy bills of cost to ac-
cumuate for witnesses attending courts for if the
judges would set days for the trial Of causes witness
es would not be in attendance any scarcely. But if
the objection is urged in good earnest, and it is
thought that dispositions will answer every purpose
of proof snuS why do not the gentlemen propose
that dispositions shall be taken in the circuit court?
We do not believe in favoritism, and sutOrs in one
court should have all the advantage of suitors in the
other courts. There might be special cases where
an account ought to be TAKEN such some cases of
trusts partnerships, &C., and in those cases it might
be proper to take the deposition of Witnesses yet
such cases are of rare occurrence, and present no
obstacle to the plan we propose.
We are aware that causes would be more generally
decided according to justice by having the witnesses
before the iurv than nv taking their nroof and rs