New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1850-06-18
For The Tribu
Ceniiicf Of LAVE.

tries. The Judiciary Of New-York is furnishing
some illustration Of the conflict that may exist n
the Courts OF the same country. Is this anomalous
state Of things attributable to the constitution Of
our Courts or 10 the innovation in our system o.
laws which has grown up within few years.
Il may lead US to question the theory Of tie
Code Commissioners, that the reduction of the ava
into popular language will render the construction
any more CERTAIN. That the arrangement of the
subjects and the phraseoogy used have contribute
much 10 make our laws more inteLigible TO mer
not professionally educated may be conceded
But We may run into an error In suPPosng tns'
what is ineligible to common intentis out OF the
reach of difficulty. | should entertain great douo'
of the benefit that would result from general re-
vision of our laws in manner corresponding with
what has been already done in respect to the
practice Of the Conrts and it is very little 10 be
regretted that the plan has been for the present
dropped.
Great Innovations are likely to lead to results
which cannot be fully anticipated and we have
the opinion Of the profcundest thinker, and one of
the abos, Jurists that England ever produced that
no forecast is sufficient TO ensure safety in great
no innovation should be made except as called Tor
by some practical Inconvenience, in which case the
remedy should be ooextensNe with the evil to De
remedied and nothing more.
II there is danger even upon the supposition that
the changes are sde with elaboration, and under
the auspices Of men Of science and ability, wha.
NAV be expected when they are brought about by
popular theories carried out by inexperienced le
gisators
mon aw where IL could be made to apply Thence
arose q rule which has been immemonally adhered
20, Of constituting statutes with strlctness. This
me.honored rule the Code Commissioners propose
20 abrogate The reason assigned is, that as the
common law itself so fer ss relates to the subject
of the Code is abolished the rule that statutes n
dercceton thereof shall be strictly construed, has
10 application. There may be some pausibiity in
this, tut it may be doubted if the ancient maxim is
lot, after all, the wisest.
Il hes been found unsafe 10 trust TO the discretion
Of Judges A literal construction of statutory law
has Teen insisted upon IN order 70 leave no room
Cor pervereion by the arbitrary will Of ignorant or
corrupt Judges.
The code u speak Of the code as reported com
pete at the last session OF the legislature requires
that us provisions and ali proceedings under IL shall
be Mef0H1 construed. In their notes the Commits
sioners complain thst some of the provisions OF the
existing code have been defeated by the constru;
ton given to them by judges. l think 1t will ao-
rear that the real cause Of complaint is, not the
sfy7Cf construction but the arbitrary construction
by different Judges exercising that sort Of dscre-
top which the code seems to call for thus leading
10 contrariety of decaion. This discrepancy, it is
true is rot limited to questions arising out of our
rcw statutory system, but in the work OF reform the
existing state 81 things must be consldered-lhe
capacity OF our iudges-the usagesof Courts andt the
tendency OF the public mind-respectior precedents
and long established opinions is greatly preferable
10 the individual judgment OF men OF small expert
ence, who under our present Judicial system are too
likely to occupy the bench.
Justice Harris held that action for partition of
lands was maintaiDabe under the code, aud this
the Commissioners say is clearly within the provi-
sion relating to actions according to strict construc
ton But Justice Barcuo in another case held just
the contrary opinion, which was affirmed at gen
eral term Justice McCoun delivering the opinion for
sfirmauce. And it may be supposed that as the
Judges last named, did not according to the vie VS.
Of the Coumssoners conform 10 the strict mean
ing. they must have given the clause in question a
liberal construction accordngto the measure OF their
capacity
tv cen two opera singers from Havana, one of whom
had sued cut an attachment against the property Of
the other az q nonresident debtor that the attach
men. would lie although the attaching creditor was
q ron resident On appeal to the general term It
WAS decided, Justice Sill delivering the Opini0n)
end ihet If h. ives the attachment would not lie,
IL has been several times decided in New York
end elsewhere thet on appeals from an order made
at special term an undertaking, (the new name for
fecurity,l is not required. At the recent General
Term in Brooklyn it was held by all the Judges that
this was not law bu. for the sake of uniformity they
were pleased to say that they would for the present
concur in the practice adopted in the other Circuits
Itpsv be see n from thesefew instances 10 which
n great number might easily be added, that the
Second Circuit has somewhat the prominence IN
diversity Of opinion from the other Courts. ltmay
be said for the Judges OF that Circuit that they have
At least the merit Of originality recent decision
bv Judge Morse upon bill for divorce, on the
ground Of physical disability Of the husband, is quot
ed at the Bar, though have not seen the report
n held that the complainant should have sworn
that she v az not aware of the fact before marriage
and ,or want ofthat averment dismissed the bill!
Perhaps a late decision by Judge Sill Of the
Eiotth Circuit may be deemed equally novel and
profound, WHO held that p Foreign Corporation IS
liable under the Code to be sued in this State like
spv ether defendant, by the service OF a summons
v i'll ont process of attachment but this conflicts
with an old principle recognized by our courts tnat
Corporation has bot local existence, VIZ WIN,
In the State where it has received its Charter; and
ia not emerable % suit in any other state except
bv voluntary appearance he got over the difficulty
bv saving that the suit under the Code IS nothing
more than a proceeding against the property oithe
CORPORATION in the State-in other words, although
HE Corporation is not liable 10 be sued, yet II
creditor commences a suit we will hold on upon the
defendants or anything they have here, until they
consent to be sued.
IL may be fairly deduced from these and similar
a5pdicstioDs that there is 10 be lack Of liberal
construction but whether the Judges will be able
10 keep common standard of liberslty remains to
be seen.
Chief Justice Coke pithily answered, when his
opinion " as demanded upon the case of Archbishop
Abbot. " If II be matter arising upon tho Common
Law should be ashamed not to be ready 10 make
On enaver. but if il be a matter OF Statute Law,
God forbid that should answer hastily"
Such was his opinion of the uncertainty OF hu.
man judgment uneided by precedent and opinion OF
others. "JURIs coNsULTUs DEDocTUs
"A Jo,,ts, tchO h1s lnearned what he kaetc Of td0J