The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1847-09-27


There are however, certain cardinal principles lying
at the foundation Of the system Of reform in proceedings
and plesdngs in civil controversies which have been
very deliberately considered by every member OF the
commission, from the moment of their appointment ana
upon which after the most and patient iDvesi
cation and discussion have arrived at conclusion
adverse to the opinions entertained by our colleague
do not deem out Of place In answer TO 30 much OF
the resolution of honorable body requires us to
report the progress any, which have made In the
performances Of duties, briefly to refer to the In
views upon them very GENERALLY reserying more full
discussion Of them until prepared to report the
provisions: In detail by which shall propose that they
The nrst of these principles is the establishment
uniform course Of proceeding (includng both practice
aud pleading In all cases. whether Of legal or equitable
As the Jurisdiction of law and equity existed in this
State, to the period Of the adoption the new Con-
stituon, vested In separate and distinct Courts 1t
seemed TO follow necessary consequence, that dis
peculiar functions of each Of those courts though In
our opinion, many differences In matters of practice
were recognized which, under the former distnc
jurisdictions established there Is in judy
ment, no longer necessity for difference in mere
modes OF procedure In OF the character to which
refer Keeping In view the distinction to which We
have before the rights OF parties and
the mere means BY which those rights to be
tanned and enforced the simple enquiry which here pre-
sents itself, whether q mode Of proceeding common
to sh civil controversies, and adequate to the
end in view, can be safely and conveniently pre-
scribed We do not intend any to interfere
with the question Of right between tgant parties
do intend to discuss the effect Of the constitutional
provision vesting law and equity jurisdiction in the
preme Court far that provision may be supposed
to affect substantial rights An that we mean to say is
that satisfied upon the fullest consideration that
there need be difference In the form Of proceedings
leading to and consequent upon their determination.
The object Of every suit far modes of proceeding
are concerned to place the parties whose rights
involved In It in proper and convenient form before
present their conflicting allegations plainly and inte-
bly to each other and to the court to by
quate means trial or hearing the contested points
to obtain judgment determination adapted to the
justice Of the and to effect the enforcement OF that
judgment by vigorous and efficient means.
This object Is not peculiar to any form Of remedy
whether be legal equitable whether it fall within
any Of the subordinate classes Of actions they
now exist at law, but Is common to them all That It
be- practically attained In every species of contro
versy far the formal and steps in
the conduct Of suits is concerned will not stop
to We shall that portion of the system
which purely Of detail until present the speci
10 provisions designed to carry 1t into effect But II IL
necessary refer to points in which the
simiation Of law and equity procedure would to
be attended with difficulty.
The nrst of these is the subject of pleading The DIS
tingushng feature now existing between pleadngs at
law and equity M that IN the former the proessed OBJ
ject is by concise and formal statements of conclusions
Of fact to bring the to distinct ISSUE either of
fact Of In the latter the facts OF the case
may be stated without techncalty and with minute
ness OF crcumstantia detail tending to establish the
proposed conclusion offact In forbidden by the
rules of pleading which prevail In courts Of law This
distinction far equitable pleading
Of equity In enforcing discovery in aid of the relief
sought and In the necessity which existed for minute
Of the defendant At law with some unmportant stat.
utory exceptions, such power exists and hence
thing but conclusions Of fact have either been permitted
or required in pleading We propose to reduce the
TEN OF pleading to of allegation merely without
ference to discovery in the mode which will presently be
suggested 30 that the form of allegation NAV be
adapted which have heretofore been distinguish
ed legal and equitable And In order to prevent any
prejudice which might otherwise result from the necess
to ftnn In fnr tnAn f Ainrf IN
which have referred shall present series Of
actments providing that in all cases either party may
necessary the prosecution defence the action
The second point of difficulty In the way Of the pro-
posed assimilation of practices Is the mode OF trial -
The constitution has provided by the second section Of
article hrst that the trial by jury ia all in which
it has been heretofore used shall remain invioate for
but that jury trial may be waived by the parties
In nil civil cases. In the to be prescribed by aw
and by the tenth section Of the sixth article that the
testimony in equity cases shall be taken In like manner
rs in cases at law Under these sections the Legsls
ure have power to provide literally for references in all
in which that right has heretofore existed well
Ia of q strictly legal character ia those Of
equitable nature which they deem be more e.
uenty Investigated In that msde In reference to the
jury in ali cases In which that mode Of trial can be
vsnisntiy adopted unless waived by the parties
The third consideration connected with this subject
To- the existing differences In the form Of judgne and
tue Of enforcing peculiar TO the courts Of law
and equity. Judgments in the former are, with very
few exceptions compensatory, while in the latter
majority of cases. they embrace specific relief peculiar
to each 1t is leading feature Of our proposed
plan, to require In all cases Judgment adapted to the
established rights Of the partiss and we no diff
foulty in incorporating it. portion Of uniform
system Of practice, form Of execution which shall
adapt itself TO the judgment.
Independently therefore, of the express declaration OF
the legislative will requiring US to provide for uni
form Of proceeding In all whether Of legal
equitable cognzance," difficulty, which
cannot be readily overcome In the accomplishment OF
this object while in accordance with the direction thus
given u.s. perceive just for preserv
nal in either being the same The Legislature in
adopting this provision, no doubt act upon the well
to the merits of the controversy, parties had b,en
turned out Of courts Of equity, because they should
have gone into courts Of law and out OF courts of law
because they should have gone into equity. They no
doubt also correctly interpreted the constitution which
had abolished separate Of equity and transferred
general Jurisdiction in law and equity to the Supreme
Court when they instructed US to provide for system
OF procedure which should obvate the evil referred
and the protection OF rights without references to
unnecessary and unmeaning forms. While, therefore,
we shall endeavor to recommend nothing which shall
prejudice any substantial right, shall devote
efforts to aid in carrying this object into effect
by recommending cautious and well considered en-
actments.
abrogaton Of the existing distinctions between forms
of actions at law. We not insensibe of the
in regard to an innovation which has been deemed
so sweeping this IL would be impossible within
the limits to which We must con6ne ourselves in
this report to discuss the objections which have been
presented to US, this subject and shall there
tore reserve them until 1t shall be presented in fovn
for the action of the Legislature. We cannot forbear
adverng however to the fact, that, while these dis
tnctions have been long upheld as supposed to be
cessay parts Of the machinery OF the law have not
been able 10 discover thing in them essential to the
administration Of justice That they have been found
convenient In many respects Is perhaps not to be de-
MED; but that they have been used to alarming
tent to defeat Justice Is not less true There is
branch OF legal science embracing more abstruse ant
curious learning, than that which appertsins TO the
establishment and retention Of the forms Of action
We shall have occasion In future report to refer tc
It with some particuarty but for the present shall
content ourselves with observing generally that the
practical operation Of the rules upon this rubject IT, to
require the plaintiff at the peril Of failure to denomi-
nate his cause OF action by Of the arbitrary
names by which the different actions distinguished
and to bring himself In pleading within the technical
rules applicable to the form Of action which ne has Sc
ected II could discover In the idea that these as
tinoons fhould be retained any necessary connection
between them and the substantial rights OF parties we
should hesitate TO recommend that they De
But when We look at the course of legislation both In
England and In this State by which, with few s1cep-
been resolvsd into the single action of eectment and