Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1875-03-04

! in what class Of cases the testimony should
be delivered in person to the court, and in
what class of cases il should be
presented in writing. In those States
which have consolidated the jul
risdictioD they have provided that
eli actions instituted for the recovery of
specific, real or personal property, as eject
ment, repleyin, OF detinue, and all actions
for the recovery of money only, whether
brought on contracts or wrongs, shall be
subject to a jury trial, unless in cases of
/ complicated account, which may be referred
| TO one OF more cOmmissiOners-nOt eX-
| eeeding three. This seems to be in con-
formity with the '.judlcature act" Of the
British Parliament, passed in 1874, which
requires issues Of fact TO be submitted to a
jury, except where they involve 4 pro-
lOnged examination Of documents or ac-
counts, or a scientific or local investigation,
which class Of cases are subjectto reference,
because they cannot be conveniently dis
posed Of by jury, or through the ordinary
officers of the court. Actions for the re-
cOvery Of specific property, real and per
sODal, and actions for the recovery of
money only, on contracts expressed or i'm
piled, and actions on wrongs or torts, COM
pose the mass of the jurisdiction exercised
now by the Circuit Courts. Actions on
wrongs or tOrts, such as actions for assault,
I libel, Islander, malicious prosecutions, Sc
dUctiOn, Grim. con-, breach of marriage
promise, and for negligent destruction of
life, or negligent injuries to person or prop
erty, are those most appropriate for jury.
The damages which ought to be assessed
are more difficult of ascertainment, and the
amounts thereOfare less dependent upon the
rules Of law and are more governed by gen.
eral discretion than in other classes Of
cases, and consequently should be submit
ted TO the judgment Of a jury. In all
actions on wrongs, this mixed tribunal is
the best which the wisdom of man has de-
vissd, and if half the attention was
paid to the selection Of the jury that is
| now given to the selection Of the judge it
would be so regarded by all. The trial by
| jury is also necessary in this class Of cases,
| for the protection of the parties litigant
against the corruption, partiality and pecu-
liar opinions, religious, sectional, or
political Of the judge, and no less
necessary for the protection of the judge
against groundless suspicious and unjust
charges.
But it is not in the scope of this article
the consolidated system. 1t will be readily
perceived that it does not necessarily con-
meet itself with written testimony or testi-
mony delivered orally to the court, or with
trials by the court or trials by jury under
the charge Of the court. 1t may be sue
cessfully administered with either mode Of
proof or mode of trial, and the details may
be modified as time and experience may
r,-,,,0sfEf,v1 r1nohn &c
that the jurisdictions may be consolidated
by the abolition of the existing distinC-
tiOns between actions at law and in equity,
and the organization Of district courts by
which the entire merits of every COntrOver-
sy may be adjusted upon pleadings EN-
bracing legal and equitable issues, and any
and all relief given, legal or equitable,
which the Circuit and ChanceTy Courts
can now give. 1t would not unsettle or
change the laws which ultimately fix and
determine the rights Of parties litigant.
Dealing only with modes of judicial adj
ministratiOn, with pleading and practice,
We may ask with more confidence, if the
common and statute laws Of the State are
to be eduitably construed, can any salts
factory reason be given why that equitable
construction shall not be enforced on the
SAME GDL1b AMI III LLC same plONEGA4AlE
cOnCuTently with the administration Of
the common and statute law? If the
equity Of the case be the ultimate and con
trolling law Of the case, if DEGREES in chan
Gerry annul judgments of law and tx the
rights of parties litigant, can any rational
ground be given for the adjustment Of the
law in one suit in one court, and the ap-
plicatiOn Of the equity in another suit in a
different court?
If we look to the underlined boundaries of
the jurisdictions Of the Circuit Courts and
the Chancerv Courts, there will be found
much to strengthen the policy Of COnsOlidat-
ing them. The statute book provides that
the Circuit Courts shall administer justice
according to law, in all cases where the
jurisdiction is not conferred upon another
tribunal, and the ChanceTy Courts have all
the power, jurisdiction and privileges prop
eTiy incident to a court of chanGeTy. The
statute book therefore throws rs back upon
the works on common law and equity iu-
risprudence to find out what is the bOunda-
~ between these Jurisdictions. The Cir
cult Courts try actions for the recovery OF
specific real or personal prOperty-and give
judgments for the delivery Of property.
They try also actions for breaches of con-
u dIL anu 0ILIA9r DAL u IA dLlN VI lLCoE
actions equitable rights are involved, the
plaintiff cannot bring them forward in his
declaration OF the defendant assert them in
his plea; the court has no right to hear the
whole truth and infOrce law and equity
cOncurrently, as a Justice of the Peace
does, bv the Code, where the sum involved
does not exceed fifty dollars. Though the
equity of the case is the controlling law Of
Il. - q 10,
case in an action at law. The statute aud
common law does not permit equitable rights
10 be enforced or equitable wrongs TO be re-
dressed in the suit in the Circuit Court;
thew are to be disposed of by another suit
in the Chancery Court. The difficulties,
therefore, which arise in the practical ad-
ministratiOn Of justice can be removed by
permitting the parties to bring forward in
the pleadings all matters in controversy,
legal or equitable, and fixing the mode Of
trial.
A few instances Of the embarrassing dis
tinctOns between the two Jurisdictions may
be properly referred to by way of illuStra-
ting the necessity Of the measure now pro-
posed. The Circuit Court gives judgment
for damages upon the proof of a breach of
a contract to convey land; but, if the party
Wl5Lcb ~ lLAtliaE LtlG AslEllAll1llL NDlhtF TIC
title, he must go to the Chancery Court.
Why shall not a court be organized with
authority 10 decree title, deliver possession
and give damages One court will defeat
a deed, another will reform it and enforce
it; one regards the trustee as the owner of
the estate; the other regard the beneficiary
as the owner; one has the power to execute
trusts, the other has 40 such power;
one court has the power TO try the validity
of title to real estate, and determine the
suffi ciency of the consideration Of a note or
bill Of ex change, but the power 70 res train
the sale OF the land or the negotiation of
the note or bill of exchange belongs to an
other court; in one court, the separate eX-
istence Of a married woman is merged in
that of her husband, and they are for nearly
all purposes, one person; in the other she
has many valuable rights, which she may
assert as a single woman one court fol-
lowing the common law and the other the
Roman law. For centuries courts of COM
mon law had no power to examine the par
ties to a suit. This power was one Of the
main pillars upon which the editice Of
chanceTy rested; now the parties are wit
sesses in all courts alike. Formerly a
court of law could not perpetuate testimO-
nv in danger of being lost, or secure prop
erty during a litigation; now these powers
belong to both courts. Formerly courts
Of law court could not prohibit the
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