Johnson v. Ballingall , 1 Ga. 68 ( 1846 )

Ldmpkin, Judge,

having stated the facts of the case, proceeded as follows t —

Believing, as we do, that this case is controlled entirely by the judiciary act of 1799, we deem it unnecessary to notice the several grounds assumed by counsel for plaintiff in error, or to review the authorities adduced in support pf them. The fundamental policy of our legislature, from the beginning, seems to have been to simplify pleadings, and at the same time to promote by them the substantial ends of justice. They hare discarded, therefore, alike the diffusiveness and detail of the civil, and the technical accuracy and precision of the common, law. Suits are conducted in our courts by petition and answer, resembling more a proceeding in equity than any other. It is required of the plaintiff that he file his petition in writing — which shall contain the charge, allegation, or demand — plainly, fully, and distinctly set forth; and of the defendant, that he shall, on or before the last day of the term to which the petition is returnable, make his defence or answer in writing, which shall plainly,, fully, and distinctly set forth the cause of his defence. And what is the great object "sought to be secured by this salutary provision ? Is it to pervert or prevent truth, by shrouding it in technical gibberish as has been both ignorantly and rashly charged ? Never was folly more fatal than to suppose so. It is to apprise both parties what they will be called upon to meet on the trial, so that being seasonably notified, they may come with all of their proofs prepared for the occasion. It is to enable the jury to know upon what statements of facts they are to predicate their investigation and verdict, and to put it in the power of the court to know upon what issue it shall pronounce its judgment. Would not any relaxation of the law produce surprise, misapprehension, and hopeless confusion ? We hesitate not to assert, that trial by jury and the system of pleadings, as heretofore practiced in our State and based as it is upon the very nature of things, will stand or fall together. Courts of admiralty dispense with pleadings, and with them trial by jury also. England made full experiment of the scheme so ingeniously defended by the plaintiff’s attorney, and the result has been that among the numerous law reforms introduced of late into that kingdom, the judges have adopted new rules, under the acts of parliament passed for that purpose, wherein they have not only returned to the good old paths, which they had so unfortunately forsaken, but have, to render remedial justice still more perfect, “ corrected the abuse of the general issue, by restricting its meaning and application to its original design and effect.” — 10 Bing. 453, 475. In actions on bills of exchange and promissory notes, the plea of non assumpsit is no longer admissible in England, but a plea in denial must traverse some particular matter of fact. — Greenleaf on Ev. 2 vol. 7. All matters in confession and avoidance, whether going to the original making of the contract, or to its subsequent discharge, must now be specially pleaded. — lb. Such distinctness of information is now considered indispensable, on principles of common justice, in the mother country ; and hear the natural result of this return to their “ pristine excellence These statutes and rules, says Mr. Warren, for the further amendment of the law, and the further amendment of justice, have already exercised a most suasible and benignant influence upon every department of litigation, with reference equally to suitors and practitioners ; saving, to the one, the destructive expense and procrastination so long deplored by all ; and to the other, simplifying and abridging the drudgery of their labors, rendering the practice of their profession, in a word, more systematic and scientific than ever.— Warren’s Law Studies, 14. Shall we retrograde, by permitting the defendant, under the plea that he did not promise to pay the bill, to give in evidence proof that it was founded on an illegal consideration ; and that, too, against an innocent holder, presumed to be altogether ignorant of the consideration ? Would this be fulfilling the reasonable expectations of the venerated framers of our Judiciary, in requiring that each party be timely and distinctly informed, by the record of the proposition intended to be maintained by his adversary, at the trial, that he may come prepared to meet it ? We think not. Instead of the courts receding, our law-makers should take higher ground in this matter, and require of the plaintiff, as they do in some of our sister States, to file his replication in writing. We are already encountering serious inconvenience for want of this wholsome enactment; and our records stultify us, whenever they are exhibited in foreign courts. An action of debt is brought on a promissory note, barred on the face of it. The statute of limitations is pleaded, and still there appears to be a recovery on the paper. This is inexplicable to strangers, who are uninitiated in the mystery of oral replications. So, to debt on a bond, the defendant pleads a release, to which the plaintiff verbally replies, it was given under duress, and upon this issue succeeds, although not a vestige of it remains on the records. As a court, we should feel ourselves inexcusably culpable, were we to countenance, by our sanction, evils so glaring, any further than we are constrained to do by the law as it is, one jot or tittle of which we will in no wise abate. Much of our present practice is in direct contravention of the Judiciary. Our effort and aim will be to uphold and maintain this magnificent monument of legal and juridical wisdom, in all of its length and breadth. Lord Brougham has been greatly eulogized for displaying a reach of intellect in advance of his age, and far beyond his cotemporaries in the reforms which he recommended in the civil and criminal code of his country. Any reader of his speeches will discover that many, yea, most of the plans, which he proposed, were embodied in our judiciary, and had been in practical operation for more than a quarter of a century before. We should be recreant to the highly responsible trust confided to our hands, were we to permit the foundations of this beautiful fabric to be undermined.

It is the opinion of this court, that the decision excepted to is correct and ought to be affirmed, and it is ordered that the same be certified to the court below.