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eminence in Great Britain expressed great admiration of the boldness of the undertaking, and of its complete success, and it is known that the English parliament has condescended to copy verbatim from it, very freely in their enactments upon the most important and intricate subjects, while many of the states of this Union have engrafted large portions of the work into their statute-books, and others have adopted it as a model for the revision of their own laws.
Codification, strictly speaking, was not the aim of the work. It was a codification of the statute law, and occasionally of portions only of the common law. The value of the latter was so evident, and the whole work gained so much in public estimation, that many enlightened and sanguine citizens began to entertain the belief that the whole common law could be reduced to a written code, like the Roman and other institutes of the civil law. This belief grew and strengthened so much, that the convention which in 1846 formed a new constitution, inserted in it a mandate to the legislature, to appoint a commission for that purpose. They also inserted a direction to organize another commission "to revise, reform, simplify, and abridge the rules and practice, pleadings, forms, and proceedings of the courts of record of the State."
Commissioners, under both of these injunctions, were organized at the session of the legislature in 1847, one called the code commission; the other, the commission on practice and pleadings. Mr. Walworth, the late Chancellor, John A. Collier, and Alexander Worden, were appointed the code commissioners, their term of office limited to two years, with salaries of $2000 each, and provision for clerk hire. Mr. Walworth declined the appointment, and Anthony L. Robertson, of New York, was substituted. John A. Collier accepted and remained in the commission about a year, when he resigned, without any report of his proceedings. Seth C. Hawley, of Buffalo, was, in 1848, appointed in his place, and during that year the commission consisted of Messrs. Worden, Robertson, and Hawley. Mr. Robertson appears not to have acted with his colleagues, and the latter, in 1849, reported a revisal of four chapters of the Revised Statutes, but made no progress in codifying. The term of office of Mr. Robertson having expired in 1849, John C. Spencer was appointed in his place, but refused to accept under the circumstances. Mr. Worden, therefore, announced his own resignation to take effect on the 1st of November, 1849. The experiment of codifying does not seem to have been even commenced.
The commission on practice and pleadings was organized in 1847, by the appointment of Nicholas Hill, Jun., David Graham, and A. Loomis. Mr. Hill soon resigned, on the ground of entire disagreement with his associates upon the plan and extent of the proposed reform. David Dudley Field was appointed in his place. The commission thus formed, reported to the legislature Parts Í. and II. of a Code of Procedure, as it was termed. The title to the name of code might be questioned, as the proposed enactments were confined to distinct sub
jects of practice and special rules of pleading, leaving the large mass of common law principles and general usages untouched. Yet they were very sweeping and very radical. They were expressed in terms so brief and general, as to be incomprehensible to any one who was not previously well acquainted with the existing practice and system of pleading.
The first part of the report related to the courts of justice and their jurisdiction, a subject scarcely within the commission. Even this was not complete, but left much, even of previous statutory law unaffected. But as this part can possess little interest for the general reader, it will not now be further remarked upon. The second part related to civil actions. It is impossible to state in detail the various new propositions which it contained. Within the limits to which this article ought to be confined, a selection of the most prominent and important can only be presented.
The part last mentioned commences with the following provision:The distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished: and there shall be in the state hereafter, but one form of action for the enforcement or protection of private rights, and the redress of private wrongs, which shall be denominated a civil action.
It will be for professional men to expound this clause, and understand what is meant by there being but one form of action,-and that to be called a civil action.
Other sections contain the following provisions:-Every action must be prosecuted by the real party in interest, except that an executor, administrator, or trustee of an express trust, or person expressly authorized by statute, may sue without joining with him the person for whose benefit the suit was instituted. This, it will be seen, sweeps away the whole doctrine respecting assignments of rights in action, and gives a fixed legal interest to the assignee. The exception as to an executor seems quite unnecessary, as he is the only person who has any vested interest in the assets of the estate. A married woman is allowed to sue alone, and in her own name, when the action concerns her separate property, and to sue and be sued alone when the action is between herself and her husband. All persons having an interest in the subject of the action, and in obtaining the relief demanded, are to be joined as plaintiffs, and any person may be made defendant who has an interest in the controversy adverse to the plaintiff. No action is to be abated by the disability of any party, or the transfer of any interest therein, if the cause of action survive; and the assignee may be substituted for the original party.
Actions are to be commenced by a summons signed by the party or his attorney, which may be served by any one on the defendant personally, and in certain cases by publication.
All the forms of pleading heretofore existing are abolished, and
hereafter those forms and the rules by which the sufficiency of the pleadings is to be determined, shall be those provided by the act. The pleadings are, a complaint, a demurrer, an answer, and a reply. The complaint is to contain the names of parties, &c., and "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"! and a demand of the relief claimed. Six grounds of demurrer are specified, some of which include what have usually been the subjects of pleas in abatement, which are abolished. The answer is to contain a denial of each allegation in the complaint, or of a sufficient knowledge to form a belief, and a new matter of defence. The reply is to contain a similar denial of the new matter in the answer, or of knowledge sufficient to form a belief. All material allegations in the complaint not controverted in the answer, and all such allegations in the answer not controverted in the reply, are to be taken as true; but new matter in the reply may be controverted on the trial. No demurrer was allowed to any pleading but the complaint; but this was stricken out in the amendatory act of 1849, hereafter mentioned, and it may be interposed to any pleading. A power of amendment, almost without limit, is given.
Defendants can be arrested only on an order of a judge, founded on affidavit. Writs of injunction are abolished, and orders substituted. Indeed, process under seal is universally dispensed with, and the mere direction of the attorney substituted. Issues of law arise upon demurrer, or where the fact is not controverted. All actions are issues of fact, and are to be tried by jury, or by referees, or by the court; and a jury trial may be waived.
Judgment may be given for or against one or more of several plaintiffs, or defendants. Any relief, where there is an answer, may be given, consistent with the complaint and embraced in the issue. Judgment records are abolished, and an entry is to be made of every judgment in a book, by the clerk, and a copy thereof, with the papers on each side, constitutes the judgment roll.
The proceedings heretofore had under a creditor's bill, to reach effects of the defendant after an execution returned unsatisfied, are continued under an application to a judge and an order by him. Any person indebted to a defendant against whom an execution has been issued, may pay the amount thereof to the sheriff, which is to discharge him.
Instead of a fee bill for costs, specific sums are allowed in different stages of an action; and a per centage may be allowed on the amount recovered in the discretion of the court. Appeals and reviews are allowed, in certain cases from the decision of a single judge, to the court in term, and finally to the Court of Appeals; but security for costs must in all cases be given; and where a judgment is rendered for
the recovery of money on the assignment or delivery of property or documents, the execution can be stayed only by giving security for the payment of the amount recovered or the fulfillment of the judgment, in case of affirmance.
Provision is made for the stating of a case by the parties, and submitting it to a court for decision. Actions to obtain a recovery in aid of the prosecution or defence of a suit, are abolished. Parties to suits may be examined by their adversaries, in the same manner as witnesses before or at the trial; and their testimony may be rebutted by other evidence. When thus examined, they may testify in their own behalf in respect to any matter pertinent to the issue; but if any new matter be introduced not responsive to the inquiries of the adverse party, the latter may be examined as to such matters. Persons immediately benefited in the result of the action, may be examined in the same manner as parties. Excepting such persons and parties, all others are competent witnesses whether interested or not.
In the preceding enumeration of provisions, those have been omitted which have been subsequently altered by the legislature, and also such as were in force at the time.
This first part was adopted by the legislature of 1848, with few alterations in substance. A very cursory examination seems to have been bestowed upon its contents by the committee of the Senate, and it has been stated in debate in the House of Assembly, that this part passed that body without having been once read. The act took effect on the 1st of July, 1848.
At the session of 1849, the commissioners on practice and pleadings made three further reports. One of them, called their second report, is confined to amendments and additions, or rather, alterations of the act previously passed, consisting of forty-seven sections. As they introduce no new principles, a specification of them is unnecessary.
The third report also contained additions and amendments to the first report, and provisions respecting special proceedings and jurors. It contained a bill for establishing tribunals of conciliation, by which the county judge of each county, and a special judge in New York city, are to hear the complaints, allegations, and explanations of parties, inform them of their respective rights, and endeavour to reconcile their differences. Any person may serve a written notice on his adversary, requiring him to appear before the judge. If a reconciliation is effected, a memorandum is to be entered in a book of records, and signed by the parties, which is to be a final determination of the controversy. The plaintiff in any action is not to recover costs, unless he show that he has notified the defendant to appear before the judge, and the defendant is not to recover costs when he failed to appear, pursuant to a notice. In actions between partners, or between principal and agent, neither party shall recover costs unless he has offered to submit the controversy to arbitration. No fees are to be allowed the judge of
the tribunals. These propositions were not adopted by the legislature. Writs of scire facias, quo warranto, of prohibition of nuisance, and of waste, are proposed to be abolished, and actions substituted. Instead of certiorari, writs of review; instead of mandamus, the writ of mandate; instead of ad quod damnum, the writ of assessment, are provided, and the writ of habeas corpus ad subjiciendum, is to be called the writ of deliverance. The substance of the former proceedings was re-enacted. Numerous provisions were also reported respecting the drawing, summons and impannelling of jurors, the only material new one being that which required permanent jury lists for the courts of Justices of the Peace.
These propositions, however, were not all adopted by the legislature; but selections were made of such as seemed connected with the portion of the code already in force.
The fourth report of the commissioners relates to criminal law and practice, and is so full of novelties that it is wholly impossible to specify them within the limits of this article. The mode of examining persons accused before magistrates is very minute and cumbrous. Grand juries are to find indictments only against persons already held to answer by a magistrate, in other cases they are to present the offender, who is to be examined in the same manner as on complaint before a magistrate. Forms of indictments are given, of which the following is a specimen. For rape,-"Forcibly ravished E. F., a woman of the age of ten years or upwards:" for grand larceny,-"Feloniously took and carried away a gold watch, the personal property of C. D., of the value of more than twenty-five dollars:" for an assault and battery,-"Assaulted and beat C. D." On the trial, the defendant's counsel is always to close the argument. Sundry changes in the nature and description of offences are introduced, as if they belonged to practice. But as this report has not been adopted, and is to come before the next session of the legislature, it is needless to speak of it more in detail.
In 1849, a revision of the act of 1848 was made by the legislature, and radical and important changes were made. These were chiefly in matters not noticed in the foregoing abstract. The provisions contained in the second and third reports of the commissioners which were deemed useful, were incorporated with the original act, and although strong remonstrances were made by the commissioners, the new and revised act was passed. A law was also passed continuing the commissioners until the 1st day of December, 1849, to enable them to suggest further amendments of their code. It is understood that they are occupied in preparing a code of the law of evidence in civil and criminal cases, supposing the subject to be within their province.
In these statements the writer has endeavoured to repress the expression of his own opinions, however strongly tempted, and has limited himself to a general survey of the work, or rather of its most important points. Incomplete, and constantly referring either to existing