Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-12-15

be corrected at subsequent term.
PLEADNG.-Loo:e pleading reprehended.
FROM BEDFORD.
Appeal in error from the Circuit Court.
John P. Steele, Judge.
w. II. Wisener, for the plaintiff.
H. s. Davidson, for defendant, cited
Code 5000, 1912; Booth VS.. Cowan, 5
Sneed, 354.
The judgment of the Circuit Court is
correct.
OPINION OF THE COURT, BY TURNKEY, J.
The only question is one of taxation of
costs. The plaintiff in error, who was
plaintiff below, sued the defendant in the
Circuit Court of Bedford county, and
filed what purports to be a declaration.
The defendant filed q plea of nil debit
and one of set off. The jury returned a
verdict "that they find that the plaintiff
has sustained damages, by reason of the
premises in the declaration mentioned, to
The sum of one hundred and eighty. one
dollars, and they further find that the
plaintiff is indebted to the defendant, by
way of set off, one hundred and sixty
nine dollars and seventy-fiVe cents, leaV-
ing balance of eleven dollars and TWEEN
ty-five cents in favor of the plaintiff"
Upon this verdict the court pronounced
judgment in favor of the plaintiff for
eleven dollars and twenty-five cents, to
gether with the costs of the cause.
At the next term of the court the de-
PENDANT moved to retax the costs and
showed to the court that on the trial he
had examined several witnesses in SUD-
port Of his set off, thereby creating costs
to the amount of $43.S6, which he asked
should be stricken from the costs taxed
against him and taxed to the plain
tiff. The court entertained the motion.
The action of the court is well sustained
by reason and authority. The set off was
a cross action, in which the defendant
was plaintiff, and in which he succeeded.
Upon principle, as well as by the uni
versal rule of courts of law, having sue
ceeded in establishing and recovering his
demand, he was entitled to recover the
costs necessarily and properly accruing
in making ont bis case.
1t is insisted in argument that the cor
ection or relaxation should not be made
because the verdict is general, and does
not ascertain the items constituting the
set off.
Such is not the law, and if it were, it
would be difficult to apply it in this case.
Under what is called the pleadings, the
declaration does not propose to be in any
particular form of action, but may be de-
nominated assumpsit, debt, trespass, tro-
yer, or ejectment, as it is "for damages
for property" indefinitely described as
crockeryware, carpets, desks, chairs,
stables, crops, fences, etc.
The plea of set off is equally inarti-
ficisl, the items being generally blank Id
always vague and uncertain. There is
nothing in the declaration or plea notify
ing the opposite party of what he is called
on to defend. The object of pleading is
wholly Gisregarded in both. Both ought
to have been stricken out by the court,
and the parties required 10 replead. The
parties made such an issue IS satisfied
themselves, and there was verdict. The
case is not here in such shape, nor for
such purpose, as to authorize this court
to disturb the pleadings now. Though
they are in no part good, even under the
DIodu aIlI LOOSC dIoN auCSs VI INC NOuC-
still they aptly illustrate the demoraliza-
ton that has already grown out of the
Code system of pleadings, aud will fur
Their result from it unless the courts re-
quire those of the profession who prefer
to plead under it, to adhere strictly to its
requirements.
1t would be better for the rights of
parties and the purity of the law, if we
could return to the ancient way-treat
pleading as a science, and the only true
ground work upon which the proper adj
ministration of the law can permanently
stand.
Affirm the judgment.
TURNEY, Judge.
A true copy: J. G. FRAZER, Clerk.