Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1857-05-16
coEHUw7o4r7ox
Law REFORM. toosnrrn.l

Outside Of thsobeotion that many questions and IS
sues presented by instead Of one itieadstosueh
bulky and intricate combinations Of statements, as to
present the case to court and jury in form Of great
complexitv. and therefore greatly embarrnsses and
nrotTacts The trial. The abuse and inconvenience
Of the system is so great that the cOmmonlaw com
missioners in their report to parliament say of it
The practice in question appears at first sight,
less strange than Objectionable Toallow the plain
tiff or defendant to state his case in ten or fifteen
different ways, more especially if the statements be
inconsistent is custom, the reasonabeness of which
is not readily perceived which is peculiar perhaps
to our own system of judicature, and which seems
to have been unknown, even in that system at for
mer period. To show those who have not exam
ined the question, how great the abuses are, and
how much it fails in coming up to what is claimed
for it by its friends we viii give three instances fur
nished by Joseph Rand, of Massachusetts, one Of
herablest and most distinguished lawyers: g" In one
case ninety counts besides the money counts,
were contained in declaration upon notes for one
pound; in another case, two hundred and eghty-six
counts besides the money counts, we're contained in
a declaration upon notes for guinea each and, in
another case fourhundred and eighty counts in debts
for penalties were contained in one declaration and
in each of these cases. the court refused, upon appi
cation made for that purpose to reduce the number
Of counts and discharged the application with costs.
We think that we have fully answered this argu-
ment in favor Of the present system, and that our
unpreiudiced readers will come to the conclusion,
that, instead of it presenting issue, and one
question for trial. that it is the prolific system
for questions and issues that the ingenuity of
ever conceived Of and that it is stumbling block
in the path of justice, disgrace to our remedial
law and an eyesore to the intelligence, progress and
common sense of the age. We for its abolition,
and think that the lights Of progress and reform all
around u.s. tell US that we have for this moth
eaten relic of the dark ages that has come down to
US through many ages, with no imprOvementsadded
to It. to adapt to the varying wants of country,
and which was adopted and used at a time when ignO
rance and superstition broOded over the mental hor
lion Of man like dark cloud, and while letters and
the law were complete Oligarchy.
If there is one feature in our law of pleadings,
more Objectionable than all Others and which leads
to greater difficulties and perplexities, it is in that
rule, which permits the defendant to file as many
pleas as he may wish, though they may be nonseu-
steal and directly contradictory and antagonistic
each other. The pleas to the counts of declara-
ton, ought to be consistent and truthful and re-
sponsive to the question to be tried, but by our
practice they are directly contrary to this. The
pleas scarcely ever inform the plaintiff of the defen
dant's defense, and very often fatally misead him,
and never at best leave him in anything but doubt
and uncertainty. But, it is urged in favor of this
rule that if it we're abolished it would cut off many
Of the deences that the defendant could legimatey
make Our answer to that is that all true defences
are consistent with each other and truthful, and
can always be used for truths never conflict, for
like parallel lines they never cross each other and
therefore can always be used.
To show more clearly, the great uncertainties pro-
duced by the of many contradictory pleas, we
will state an instance or two, of every day occur
renee in our courts of justice. A brings an action
of case for SANDER against B. at the return term
of the court files his declaration and usual in this
kind of suit, he inserts in it from five to twenty
counts, charging the defendant of speaking nearly
every conceivable thing that the ingenuity Of the
lawyer can conceive of to all of which the defen-
dant pleads about as follows, under the rule per-
hitting any number of pleas, though contradictory.
His first plea is that of the statute of limitations:
that is, he spoke them, but six months before the
bringing Of the suit secondly he pleads not guilty
that is he never spoke the words; thirdly he pleads
justification that is he spoke the words and they are
true, and then perhaps follows a half dozen other
special pleas different from the above by all of which
the whole question is left in an endless maze of
doubt and the plaintiff knows nothing about his adj
versarys defense.
Again, We will take the ordinary case of an &C
tion Of debt, to which the defendant often puts in
the following pleas: LIST. Nj debit that is be does
not the debt; ID, payment, that is he has paid
of part all of the debit 3rd set off, that is he has
claims to balance against it; 4th, the statute of mi
tations, that is, he it, but the right to recover
il, is barred; 5th want Of consideration, and 9th,
usury.
The above are familiar instances in our practice,
and though it may be the boast of a system that toll
crates such abuses that is the perfection of human
reason, yet must think that the common sense of
the age could do better, and that it ought not to be
tolerated
One other very grave objection to the present sys-
tenn is that the commencement of the suit the SER
vice Of the writ and the filing of the declaration,
scarcely ever inform the defendant at all of the
nature of the plaintiffs suit, nor how or what he is
seeking of him.
The reading of the hieroglyphics on an Egypti'n
monument would about as correctly inform nineteen
twentieths of defendants of the plaintiffs suit, as
the reading the words of writ; and as for the de-
claration the few ideas that are in them which are
covered up in verbiage and legal phrases it scarcely
serves to throw array of light on the subject to the
defendant The writ declaration and pleas of nine
cases out of ten of any difficulty, throw little light
on the true points and merits of a law suit that
think might safely venture this assertion, that
you might empannel twelve of our best lawyers,
and read the papers to them, and they would not
have single correct idea about what the law suit
was about
Every man who has served much on juries, knows
the truth Of the above remark and instead of iuries
commencing the investigation of causes, with at
least something like correct understanding of the
points Of controversy, it is often the case that the
proof is gone half through with before the jury
know anything about the cause This is all wrong
and juries ought to properly understand the points
in controversy, and what each party relies upon be-
fore any portion of the proof is introduced other
wise juries lose much Of the force and effect Of the
first portion of the proof not having their minds
directed to the proper points