Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1857-05-23
CONTRADICTION
Law REEoRM. [eosztsrsp.l

equity arises as we believe from the system Of the
common law, Of various forms Of action and plead
ings and if that is abolished and the petition and
answer substituted in their place, then the two can
be harmonized and blended in one.
The idea is very prevalent, in the profession and
out Of it. that there is an inherent difference between
law and equity; and that the equity of stated case
may be very different from the law of it; this is
great error, and has doubtless led to much Of the
opposition to the proposed system. Law and equity
are convertible terms, and the only difference be-
tween them is in the mode of administering their
remedies. 1t is often the case that in our common
law courts, that that portion of our law known as
equity cannot be made available, and parties are
forced into court Of equity and from this an
as to the nature Of the two has been fallen into.
Many believe that equity nreIeve every hardship
of the law supply every defect, and afford redress
for every wrong, and that it change alter the
law when it works oppression wrong; this is not
so, for as Lord Bacon said, "Chanceryi is ordained
to supply the law, and not to subvert the law. -
Judge Story in refung this quotes the follow
ing passage with appreciation from Blackstone, "It
is said that it is the business of court of equity
in England to abate the rigor of the common law.
But no such power is commended for. Hard was the
case OF bond creditors whose debtor devised away
his real estate rigorous and unjust the rule, which
put the devisee in better condition than the heir;
yet court Of equity has no right to interfere. Hard
is the common law stl subsisting that land decreed
or descending to the heir, should not be liable to
simple contract debts of the ancestor devisOr, al
though the money was laid out in purchasing the
very land; and that the father shall never immedi
ateIy succeed as heir to the real estate of the
But court Of equity can generally though, in both
these instances the artificial reason of the law,
arising from alprinciples, has gsnce ceased
Sc THE proposition, that equity viii relieve against
generalrule of law is neither sanctioned by prin-
ciple, nor by authority. Sect II.
We are certain that we are fully supported in our
position that there is no difference between law and
equity, except in their organization and mode of
procedure. cit is said that court of equity deter
mines according to the spirit of the rule, and not
according to the strictness of the letter. But SO
also does court Of law. Both, for instance, are
equally bound, and equally profess, to interpret
statutes according to the true intent of the legsla
ture. Here, by equity we mean nothing but the
sound Interpretation of the law, &c. But there is
not single rule of interpreting laws, whether equi
tably strictly, that is not equally used by the
Judges in the courts both Of law and equity. The
construction in both must be the same; or if they
differ it is only as one court of law may happen to
differ from another. Each endeavors to fix and
adopt the true sense of the law in question Neither
enlarge, diminish alter that sense in single
tittle.-SOry on Equity, sect. Is, B. Comm. 481,
Dane Abr. ch. 9, art. 8, Is.
To illustrate our position, and make it palmer, we
viii give few instances to show that one court and
one form of remedy is all that is necessary to ad
minister both law aud equity.
Previous to our acts of 1880, chapt 20 and so,
if person was sued on bond, he could not attach
the consideration of it in law, but was forced into
equity to do So but under the system proposed, he
could have defended himself by his answer.
Again, at every term of our Supreme Court, and
in nearly every Chancery Court we see bills filed to
enjoin judgments at common law, alleging some
equity or some defense whereby it would be unjust
that the judgment should be collected-there are
many cases of this kind, and they are generally
very troublesome and annoying to courts and parties
But there is no necessity for separate court of
equity and 50 on for such cases, for about one half
of this class of cases. are founded upon the ground
that some equity or evidence could not be used at
law, as in a court Of equity, but nothing of that
kind can arise under the system we propose, for
under it, they can avail themselves of every advan-
tage they could in both courts And in the other
class of cases. where something has arisen since the
trial of the cause, nothing would have to be done
except to file potion asking for new trial and an
injunction That class of cases where it is neces-
sary TO get judgment before you can go into equity
or where there is some equitable fund that you can
only reach by getting judgment and then flinga BILL
could all be suspended with, at a great saving of
cost and time. There is a large number of cases
that could as well be tried in the Circuit as in the
Chancery court it were not for the mode of opera
ton Of the former, viz: the enforcement of liens,
and securing Of specific performances and trusts,
and foreclosure of mortgages.
There was a time when equity came in to modify
and obviate the rigOr of the unbendng rules of the
common law but such is not the case now for equity
has grown up be great technical system of itself,
and is as much bound by precedents as law, and
many of its rules are just unbending those of
the law.
Inc UISdAALdLlou anu L6ul6uAeS VI Ju6 law are
stern and unbending, always giving its judgments
entirely for either plaintiff or defendant, without
modifying, varying, bending them to meet the
various lights and equities of the parties while on
the other hand the remedies of courts of equity are
flexible and can be easily made to adapt its DEGREES
to meet all the rights and equities of the parties,
whether plaintiffs or defendants.
There is one thing the reform would accom-
plish we would no longer see suitors turned out of
COURT because their lawyer had mistaken the proper
court for their cause for under the system we pro-
pose, you could never be turned out tell justice was
obtained.
We are of the opinion that there ought not to be
but one court tribunal for the trial of all causes
and that the system in Tennessee of distinction be-
tween law and equity, and separate tribunal, one
for the administration ofaw and the other for equity
is subversive Of the great ends of justice and is
productive of much delay, and attended with great
and unnecessary expense to tigants. At least from
onethird to One-half of the causes in the chancerv
courts have been at some time or other in the cir
cult courts by which the cause is greatly delayed
and two bills of cost and lawyers fees incurred
instead of one This is a great evil, and system
is demanded that will blend and harmonic the two
and break down the present arbitrary technical and
iniquitous differences. few examples will perhaps
sTI,gtroto o,r voeit;op bottor ~ A