The New York herald., 1850-04-28

The Code and the Courts.
The community are very much Interested
m knowing what is the effect of the "code
Of procedure in civil causes" by which the
practice is regulated. Ii was orgi-
nally prepared, as we all know, by Messrs.
Graham, Field and LOOMS, commissioners aT-
polnsss IN pursuance of a constitutional direction
that the practice should be revised, simplified and
abridged. 1t had long been alleged that the forms
and technicalities in pleading and practice had
easioned delay, expense and uncertainty, in the
admins traton Of justice that the suior instead
of having the merits of his decided, was often
entrapped in the meshes of legal subtety, and that
heavy bills Of costs accumulated not in ascertain
bag the right, but in adjusting the remedy Jurors
were often surprised when nonsu was granted,
though the plaintiff had the legal and moral right
TO recover, because the form of the action had
been mistaken; because he had sued ia " tres
pass" instead OF case, " covenant instead of
" assumpsit."
The public often discovered that case was
summarily elected from a court of law because il
appropriately belonged TO chancery Jurisdiction.
and ricc rrm. To effect reform by which such
snares and pitfalls might no longer cndlngcr the
path 10 justice, was the great object which the
commissioners were expected 10 Keep IN view. and
which the public hoped TO see effected. Instead,
however, Of reforming the existing system, Messrs.
Graham, Field and Loomis determined 20 abolish
Il entirely and substitute one which they declared
would prove simple, cheap and efiicacious.
How far their effort has been successful, is the
great question now undergoing practical test.
One great change which they introduced was
the union Of law and equity Jurisdictions in the
same tribunal
This relieved practitioners from the responsible
..f
hon the appropriate forum, and in this respect the
client became protected against the lawyers mis-
take but in other respects the practical effect OF
thus making suit easy in the beginning, is to rem
der very difficult in its progress The plaintiff
states a case, which under the old system would
have been an action at law, and yet by the an
swcr or reply, il may be converted into hybrid,
partly legal aud partly equitable Instead Of there
being one or two issues of fact there olten arise
several, and when the cause comes on 20 be- tried.
the jury, instead Of finding simply for the plaintiff
defendant, are frequently compelled 20 pass
spon distinct questions 80 that afterwards, in view
Of their finding. the court may render such judg.
mcnt that finding warrants To avoid the
danger Of submitting cases Of this kind 10 the jury.
they usually either seni 10 a rrrrec or tried by
the Judge without jury. by which means tie
old chancery system j. in effect restored, and
that dreadful q" one man power" which the
legal rcfomers furiously a-slcd. is substantial
" reinsiaied. Il cannot be denied that in ihi- par
iicular the radical change in blending two jursc-
tions entirely distinct ia their nature. has proved
embarrassing rather than useful; and the lawyers
say, when they prepare for the trial Of cau-. they
are often puzzled to know whether II will prove 10
he one for damages or one In which The Court may
direct the performance of some act other than the
payment of money. as IN the CASE Of a suit 10 conn.,
pei the seller of real rstaic 20 give deed. The
relief askcd may BE- thc specific performance" Of
the agreement and YET the judge. even NJ the trial.
may permit The "praycr" frr relief 90 be amend.
ed as 10 enable The plaintiff io obtain gccuniary
compensation
OF coure. thi- union Of Jurisdictions rcQuircl
that the obi forn,s of pleading should be ghrcgaci
In courts OF equity there never was any form OF
action known by particular name In courts OF
law each action belonged to a class designated &C.
nericallv. The codifcrs said no action should any
longer enjoy The lencfii of legal nomcncla'ure. si
no Latin should make classic the squathlcs II Doe
and Roc. end that the parties shoui respectively
state their cause Of action or bfencc, without
the NECESSITY of Observing any precise form.
and n language aiap'ed 90 "n orlnay
understanding" The result Of this j.. that
he pleading, ~ = general rule. are much
more ProlS than formerly, and in seeking 20 find
ont what The issues are, the Cour. have ffequcntly
10 wade through masses of inclemeni matter. often
unassisicd ~ The gcntcnen WAC prepared The
paicr IN irrih, system of special pleading has
been introduced, ia which the sLiifll lawyer has
thc same opportunity We bciose 10 cntrap his Less
leaned CT lcss wary opponent, and we hear al
Nisi PINS constantly The same objections 90 proof
as not applicable % the plcalnca. and 10 va-iance-
between the plcadings and proofs which in for ner
times tested - frequently he ingenuity Il the Bar
and the patience as wei ss leaning of the Cour-s
A case was tined. not long since. IN the Superior
Couri-an ecton for malicious prosecution in
which there Werc four or five defendants, and the
plsadings were about sixty folios Under me Oh
system they would not have amounted to ten. Ii
is fair TO cay that lie abos Of the Bench and Bar
ere increased under the new system. without any
improvement to the cause Of justice. The priv
lege 70 each party Of bling him 20 state his case
for the common understanding, often leads hin,