The Quarterly of the Texas State Historical Association, Volume 2, July 1898 - April, 1899 Page: 51
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Development of the Texas Judicial System. 51
any general practice act, the Common law system would have been
in force. This was prevented, however, because at the same
session, Congress passed an act entitled, "An Act to Regulate Pro-
ceedings in Civil Suits." This was approved February 5, 1840.
Section 1 is as follows:
"Be it enacted by the Senate and 'House of Representatives
of the Republic of Texas, in Congress assembled, That the
adoption of the Common law shall not be construed to adopt
the Common law system of pleading; but the proceedings in all
civil suits shall, as heretofore, be conducted by petition and answer;
but neither petition nor answer shall be necessary in a cause to re-
cover money before a justice of the peace."
A portion of Section 12 is as follows:
"In every civil suit, in which sufficient matter of substance may
appear upon the petition, to enable the court to proceed upon the
merits of the cause, the suit shall not abate for want of form. The
court shall, in the first instance, endeavor to try each cause by the
rules and principles of law. Should the cause more properly belong
to equity jurisdiction, the court shall, without delay, proceed to try
the same according to the principles of equity. * * * Provided,
nothing herein contained shall be so construed as to prejudice the
right of the parties to a trial by jury."20
This is the first reference in Texas to the difference between law
and equity; but it must be noticed that there is no separation of
the jurisdictions; both law and equity are to be administered by the
same court in the same cause, and trial by jury is not to be pre-
cluded by the exercise of equity powers by the court.
Congress, at the same session, passed an act that laws passed by
it should not go into effect until forty days after adjournment, un-
less otherwise expressly provided.21 This act had such a provision,
but there was none in either the act adopting the Common law, or
the one denying its application to our system -of pleading. These
two acts, therefore, went into effect at the same time, forty days
'after adjournment 'of Congress, and must be construed as parts of
the same act. Hence, the Common law system of pleading in civil
suits did not obtain in Texas at any time under these acts.
so Laws of Fourth Congress, p. 88.
l Ibid., p. 6.
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Texas State Historical Association. The Quarterly of the Texas State Historical Association, Volume 2, July 1898 - April, 1899, periodical, 1898/1899; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth101011/m1/55/: accessed November 23, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting Texas State Historical Association.