6. The pleading and practice of the district court are peculiar, and deserve some attention. Prier to the revolution whieh severed Texas from the Mexican confederacy, the Spanish civil law, modified to eome extent by local statutes, was in force. The COMMOD law was introduced at an early period after the declaration of independence; but the old system left behind it distinct traces, and some of its features are apparent in the existing laws. Amid the changes which followed the reve lation, when the body of the civil law was abro gated, and the common law was adopted in its ap plieation to jnries and to evidence, and as a rule of decision, where not inconsistent with the consti tution and laws, the system 'of pleading previously in use was carefnlly preserved. That aystem is still in force, except where it has been expressly changed hy subsequent legislation altering or esta blishing the course of proceedings in the courts, or where it has been necessarily modified by the introduction of the trial try jury,—a mode of trial wholly unknown to the civil law,—and with it, to a, great extent, the practice peculiarte the common law courts, the analogies of which are constantly consulted by the Texas practitioner.
The system of pleading formerly in force, and which has impressed its ehara,cter on that now practised, consisted in written allegations by the parties on either side.
As defined by the Spanish law-writers, an action was the legal method of demanding in a conrt of justice that which is our own and is withheld from no. They were divided into real and personal,— the former having reference to the right which we have in a thing, the latter, to the obligation which one has assumed to perform a certain duty. The defence to an action was called an exception. It embraced every allegation and defeece used to de feat a recovery by the plaintiff. Exceptions were either difatory, when they delayed or suspended the action, and peremptory, when they destroyed it and prevented further litigation.
7. The first step in the progress ef the aetion was the demand, which was a written petition adapted to the nature of the action, and must have contained the following requisites :—firer, the name of the judge to whom it wag addressed; second, the name of the plaintiff; third, the name of the de fendant ; fourth, the statement of the cause of ao tion : fifth, the ground of the demand, or the right hy which the relief was sought.
The demand concluded with the word "pro," vrhich signified that the party had taken an oath that his action was begun in good faith, and the words "el oficio de vmd. implora," by which the in terposition of tho judge was invoked.
The citation followed the demand. This was the proeess by which the defendant was brought into court to answer the demand.
Then followed the contestation, which was MN answer made by the defendant, either confessing or denying the plaintiff's right.
To this the plaintiff might present a replica, or re plication ; and the defendant might add a (J1123110(4 or rejoinder. Here the pleadings originally ended,
and new facts could only be presented upon Lffida vit that they had but just come to the knowledge of the party pleading them.
8. The history of a lawsuit in the present dis trict courts of the state will give the reader an in sight into their system of pleading and practice, and Sliew bow far the ancient form of the pleadings hae been preserved, and wherein it has been modi fied.
It will be recollected that the district courts have jnrisdiction in all eases without regard to any dis tinction between law and equity. There is no dif ference in the mode of proceeding in the appliea tion of legal and equitable remedies, nor are there any forms of action adapted to different injuries. The pleadings in all cases consist of the petition and answer. Demand(' entitling a party to legal and equitable relief can be united in the eame ac tion : an equitable defence can be opposed to a legal demand. The court may eo frame its judg ment as to afford all the relief required by the no. ture of the case and which eould be granted by a conrt of law or equity, and may also grant all such ordere, writs, and procees as may be necessary to make the relief granted effectual.
There being no forms of action, the rulee of pleading hnown to the common-law and equity systems are only applicable so far as they are the rules of sound logic and conduce to a clear and methodical statement of the cause of action or ground uf defence. No rule of pleading which is purely technical and has reference to the form of proceeding has any place in the system. The pleadings are the same in cases of legal and equi table cognizance, and the application of legal or equitable principles to the deoision of the case pre sented depends npon the feats, and not upon the manner of stating them.
9. Every suit ie commenced by the filing of the petition, which is a written statement of the cause of action, and of the relief Boned, by the plaintiff. The petition should contain certain formal but es sential parts the omission of any of which wonld render it defective. They are- The marginal venue: " The State of Texas, County of —;" the term of the court: "District Conrt, — Term, A.n. I8—;" the address " To the Dietrict Court of eaid Connty ;" the eenomenee men t, ooneisting of the names and residences of the parties; the etatement of the cause of action, which should be a clear, logical, and succinct statement of the facts which, upon the general denial, the plaintiff would he bound to prove, and which if admitted will entitle him to a judgment; the statement of the nature of the relief scrught ; the eignature of the party or his attorney. The peti tion must be filed with the clerk of the proper ()entity, whose duties are the same as at n3111113011 law, to indorse upon it the day on which it was, filed, together with its proper file-number. The clerk must also make an entry of the case in his docket.