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troversy, which no system of special pleading can dispense with.

We hope we have shown, that there are no substantial advantages derived from the present system of pleading. How great, on the other hand, are its disadvantages?

First. The present pleadings are many of them untrue. The declaration in trover is almost always false. The common counts and general issues in assumpsit are generally false. So are the statement of the venue, and the averments of time and place, in most of the actions. We need not go into further particulars to show, that truth, which ought to be the first essential in the proceedings of courts of justice, is not only disregarded generally, and upon system, but that the disregard of truth is forced upon the parties by the present system of pleading.

Not only is this an evil of itself, but it would prevent our applying to pleadings that test, which we propose to apply, that of a verification by the oath of the party. Such a verification appears to us desirable, both as a means of preventing groundless suits and defences, and of compeling the parties respectively to admit the undisputed facts; but it is obviously impossible, unless the forms of action are abolished, and a system substituted, which shall enable the parties to state truly the facts, constituting the cause of action or defence.

Second. The present system of pleading cannot be retained, unless we retain also the distinction between legal and equitable remedies. The wit of man could never assimilate the action of trover and a suit in equity. The question then really comes to this: Shall the separate systems of law and equity be continued, or shall they be blended in a uniform mode of proceeding? On our part, we have no difficulty in answering, that they should be blended. We think that the present constitution of the state indicates it, that the people expect it, and that the highest policy requires it.

When, at the late revision of the constitution, the people vested the two jurisdictions in one court, they could scarcely have intended that the two should be kept distinct. If they did, [P. & P.] 10

why were the two vested in one court? All experience shows, that division of labor is most favorable to success, and if there are always to be two distinct systems, one of law and the other of equity, it were far better that they should be confided to distinct hands. The people, however, we are persuaded, had other views. They united the two in one hand, that it might be seen that the division itself was no longer necessary.

The objections to separate systems of remedies, are first, the difficulty of fixing always the limits of the respective jurisdictions; and secondly, the frequent necessity of using both to determine one controversy.

Shall we be told, that the jurisdictions are clearly defined, and that, if mistaken, it must be the fault of the party? Every person conversant with the subject, knows that it is often one of great doubt, and that the courts themselves are involved in contradictory decisions. The other objection to the two jurisdictions is still stronger. It cannot be wise to keep the machinery of justice so imperfect that one court shall not be able to decide the whole of a cause. Every bill that is filed in aid or defence of a suit at law, and every creditor's bill is a witness against our legal establishment Though courts of equity have a rule, that when they have acquired jurisdiction for one purpose, they will retain it, so as to do complete justice between the parties, there are instances where a party is sent to law, after having obtained all that a court of equity could give him. So are there numerous instances, of parties driven into a court of equity to obtain adequate relief, after having exhausted all the powers of a court of law. And it has even happened, that there were different portions of the same claim, of which one belonged to a legal, and the other to an equitable tribunal.

The change which we propose in the system of pleading is radical, as it ought to be, and permanent. We are persuaded it will accomplish a great good. It cannot injure the substantial rights of any party. No rule of law, by which rights and wrongs are measured, will be touched, the object and effect of

the change being only the removal of old obstructions, in the way of enforcing the rights, and redressing the wrongs.

§ 119. The first pleading on the part of the plaintiff, is the complaint.

§ 120. The complaint shall contain:

1. The title of the cause, specifying the name of the court in which the action is brought, the name of the county in which the plaintiff desires the trial to be had, and the names of the parties to the action, plaintiff and defendant:

2. A statement of the facts constituting the cause of action, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended:

3. A demand of the relief, to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated.

CHAPTER II.

THE DEMURRER.

SECTION 121. Defendant to demur or answer.

122. When defendant may demur.

123. Demurrer must specify grounds of objection to complaint.
124. After demurrer plaintiff may amend within twenty days.

125. How to proceed if complaint be amended.

126. Objection not appearing on complaint may be taken by answer. 127. If neither, defendant deemed to have waived it except as to jurisdiction and cause of action.

§ 121. The only pleading on the part of the defendant, is either a demurrer or an answer. It must be served within twenty days after service of the copy of the complaint.

§ 122. The defendant may demur to the complaint, when it shall appear upon the face thereof, either :

1. That the court has no jurisdiction of the person of the defendant, or the subject of the action; or

2. That the plaintiff has not legal capacity to sue; or 3. That there is another action pending between the same parties, for the same cause; or

4. That there is a defect of parties, plaintiff or defendant; or

5. That several causes of action have been improperly united; or

6. That the complaint does not state facts sufficient to constitute a cause of action.

§ 123. The demurrer shall distinctly specify the grounds of objection to the complaint. Unless it do so, it be disregarded.

may

§ 124. After a demurrer, the plaintiff may amend, of course, and without costs, within twenty days. Upon the decision of the demurrer, the court may, if justice require it, allow the plaintiff to amend, or the defendant to withdraw his demurrer and to answer.

§ 125. If the complaint be amended, a copy thereof must be served on the defendant, who must answer it within twenty days, or the plaintiff upon filing with the clerk an affidavit of the service, and of the defendant's omission, may proceed to obtain judgment, as provided by section 202, but where an application to the court for judgment is necessary, eight days notice thereof must be given to the defendant.

§ 126. When any of the matters enumerated in section 122, do not appear upon the face of the complaint, the objection may be taken by answer.

§ 127. If no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court over the subject of the action; and the objection that the complaint does not state facts suf ficient to constitute a cause of action.

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