Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1857-05-21
CoMHUNIc4TToN
LAW REFORM. Toorrrrnrn.


good earnest on this subject they ought to oppose
the present plan Of requiring the oath Of parties in
ell cases Of attachments afdayits for continuanees,
and new trials, and supplying the place of lost pa
pers, and likewise the Law permitting either com
plainant or defendant in ohancery to be examined
on oath.
We have not so poor an opinion Of the honesty
and integrity of the citizens of this State and though
there mightbe ooeasionalcases Of perjury from this
plan, yet think there would not be half the num-
Der that there is under system as it now exists
when frivolous and malicious suits may be commen-
ced and continued for years. BY false affdavits for
eontinuanees and new trials, &c. By the petition
and answer the parties come to an issue more GER
tainly than by pleadings The whole case will be
narrowed down to the point about which the parties
cannot agree, and no proof viii be required about
anything else which of course will be great saving
of cost.
The pleadings under our system are mere 6ctiOns,
aad really decide nothing by which the whole case
is left open for proof but by this system everything
is argued except the main point of controversy,
and therefore much useless proof and cost will be
cut of. Many cases are merely questions Of law on
the facts Of the case and by this system the facts
will be presented by thepettion and answer, whereas
under the other plan the facts matter of proof
instead of making the parties themselves agree upon
them, which they could often do. The great beauty
and simplicity of the proposed system is this when
the petition is left with the defendant, he at once
knows all about the plaintiff S cause of action, and
what he asks Of him, and if it is just suit, he adj
mits it, and if not he puts in his defense, and lets
the plaintiff know what he relies upon Under the
old system each party comes prepared to prove about
every possible point in the law suit that arise,
but it would not be SO by the petition and answer
In nearly all law suits, there are great many
little things is necessary to prove, which accumu-
lates good deal of cost, but all such points would
be settled by the parties themselves, if they were
| forced to state on oath every thing they knew.
Lawyers and parties both would examine their
cases much closer if at the outset they had to give
all the facts on oath, and many law suits would not
be brought, that are now simply because parties do
not thoroughly understand their law suit before the
case is brought
| Perhaps the greatest benefit resulting from the
proposed change would be, that parties would no
longer have any difficulty in determining what form
Of action to bring for all these perpexng questions
would at once be done away with, together with a
large amount of useless technical learning and fur
Their we would not then have difficulties about the
admssibiityo of evidence to whether it is applca-
bic to this or that form of action, or this that
court. Juries under the system of petition and an
swer would at the outset understand the facts Of
case and would be much better prepared to under
stand and comprehend the evidence and decide OF
. l., 1,
The petition and answer are so much more simple
and practicable, and can so easily be adapted K
every conceivable case in a court of justice that i
must and will be adopted in our practice. On the
score of antiquity and Of a more general use, tht
plan proposed has greatly the advantage of our sys
TEN of pleading-this we confess is no argument il
its favor yet may serve to quiet those who become
nervous at the very mention of Law Reform. Blu
as to its practicability and the beauty of its opera
tion there is fact that speaks volumes in its favor
that is no country that has tried it has sOugh
to change it, while England and the several State
of the Union, which have fully tried the common
law system are fast getting rid of it, with dispO
sition to return to it.
Every reform that has been made in the remedia
law, in England and the United States fOrffy years
has been directed to reduce it to greater simpcit.
and get rid of its innumerabe ntricacies, yet Their
is much remaining to be done.
There are many and crying evils yet remaining
and a reform is demanded at once at the hands 0
the Legislature, for from the courts we can expec
nothing for their powers are not sufficient; again
they are attached to and familiar with the old sys
TEN, and viii therefore oppose a reform at ever.
step. We shall now pass to the third subject Of Gu
enquiry viz the abolition of the distinction between
law and equity, and but one court for the admins
tratOn of justice.
That our position may at the outset be understood
we viii state that we are not for returning to tn
system in use in Tennessee previous to the Organi
cation of our present Judiciary system, with on
court, and law side and equity side to it, but "
advocate the organization Of court, in which ther
shall be no difference whatever between law an
equity the manner of its organization, or the mod
of carrying out its judgments DEGREES. There is
as we consider, no inherent difference between LAY
and equity and no necessity for two courts or mod
Of procedure. Upon this subject there is grea
contrariety of opinion, and we think there are NOR
errors abroad concerning it. than scarcely any Othe
questions.
Mr.. Justice Story the ablest equity lawyer of hi
day. and who was greatly welded to equity as SCI
arate SYSTEM never came any very decided opinion
as will be seen by the following extract "Whethe
it would or would not, be best to administer tn
whole of remedial justice in one court, or in on
class of courts without any separation or distincO
of suits, or of the form modes of proceeding an
granting relief, is a matter upon which difereI
minds in the same country, and certainly in differ
ent countries would probably arrive at different col
!, illusions. Sect. 88, Story on Equity.
We commend this paragraph to those who al
honest in the opinion that two separate courts an
+ modes of procedure are necessary for the admini
o tration Of justice.
fro BE CONTINUED.
KANsAs.-The emigration to Kansas is rapidly il
creGsng and the country fast filing up with settler