The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-04-24

Among the Dutitpdin0us mass Of business con.
nected with banks, black mail, canal tolls, canal
lettings canal frauds, and other matters which en-
ragged the attention Of the last Legislature, that
BODY found time to pass batch Of amendments to
the new Code Of Practice which are Of vast import
ance to the public These amendments are the
work of Mr. Dudley Field, who, Of all the codifers,
has shown the strongest disposition to rush into
and untried experiments. He appears to have
learned nothing by experience. After the courts
have been aboring, for tho last three years. to get
the crude and undigested mode of pleading created
by the code, into some system and order, he has,
by the amendments adopted set the whole subject
aHoat again, and opened fruitful field for discus
sion in settling the multitude Of questions that will
arise, before it is determined and known what
course is to be pursued hereafter. If Mr.. Field
the only party to be affected the Indulgence in such
experiments might be a matter Of personal recrea-
ton, which, being wealthy lawyer, he might be
willing to pay for; but, unfortunately, the cost
comes out of the pockets of the people Of this State;
and ere year rolls round, thousands Of dollars will
change hands, in the shape Of costs upon special
motions, from which nobody will derive any benefit
but the lawyers.
One good thing, however, may possibly result
heartily sick of the code, if they not already,
or at least disposed to put final stop TO this ham
mering, and tinkering, and constant change. The
people have already learned the enormous expense
to which they have been subjected by the expert
ment of codifcation, the delay, doubt, and uncer-
tainty that has attended it. The confusion into
which it has thrown the whole system Of practice
completely outstrips any roal or fancied improve
ments it may have introduced The mere form Of
legal proceedings is, after ALL of very little
quence, provided it is known, 6xed and understood
1t IS only the principles of tho low, by which the
rights Of parties are to be ultimately determined,
that it is necessary to settle with exactness and pro-
cision. The form of proceeding, in civil cases, diff
fers in every country; and yetone gets along about
as well as the other There is nothing more hazard
GUS than to recast the whole form Of proceeding to
which people have been accustomed. It is pro-
ductive of nothing but uncertainty and expense.
Changes should be gradually made, and only as the
necessity arises.
To show what the public have gained, it is but
necessary 10 state one fact. Quite number Of tho
amendments just adopted are repeats Of amend
ments adopted last year, will be found by refe-
renee to sections. Let take illustration.
Appeals from orders granting new trials have been
banded about since the adoption Of the code
stricken outone year and re-enacted another. It is
again stricken out, and next year may be restored.
| The value of the amendments may be judged by the
| following specimen. Sec. 167 now roads -" The
plaintiff may unite, in the same complaint, several
causes of action 1t read last year -" The plain.
tiff may unite several causes Of action in the same
complaint" This trGnsposition Of the words " in
| the same complaint" may have marvellous effect
upon the meaning of this passage; but, if there is
difference, it is not quite plain to MS the old
fashioned distinction between tweedledum and
tweededee. The rcformers felictated themselves
| on the great improvement they had made by max
ing all plcadings special, and doing Away with the
old general issue; but it appears they have disco
vered their mistake, and all pleadings may now be
general, and the much abused general issue is back
in its old place. -
Another great improvement and one that the
courts were disposed to think well of, and aborcd
to carry into effect was, that any fact not denied
by pleading was to be considered as proved. Thi,
was even lauded by the codfers a prodigious nd
| vance But, how unstable is human wisdom upon
the subject Of codifeation! All replies to new mat
ter, set up in answer by way Of defence, now
| cut off. The plaintiff is not required to deny it
and the defendant, who sets it up in his answer
defence to the action, must now prove it, Thus is
the former state Of things again restored, and we
have back to the old form Of the general
issue, with notice Of special matter it existed
under the revised statutes twenty years ago. But
as recompense for this backward tendency, Mr..
Field has gone forward in other matters with prodi-
gious velocity. The old forms of pleading were
abolshedby the code only far as they were incon
wit n. nd yrhp was pofh in hp
code to guide party he might follow the old form.
This was wise, sensible, and necessary. But now
the old forms arc abolished absolutely and the poor
pleader is launched upon a of uncertainty, and
many bill Of costs will have to be paid by his
unfortunate client before he is furnished, in
the shape Of judicial decisions, with the ne
cessary chart and compass. Then, a fine field is
opened for inexricable confusion, in the provision
authorizing legal and equitable defences to be set
up together Several large fortunes would not fur
nish the means of getting that into system and or
der. Then, again, injuries to person and property
to be tried together. Assault and battery, and
fraud in the sale Of goods, to be anonymously
united in the same action. And lastly, prima facie
"A phrase from its constant USE as well understood
as any ia the language--a compound word that will
be found set down in its regular place, as Eng
lisb word in Webstcrs Dctionary-is stricken out,
because, like nearly oneffth Of the words in our
language, it is of Latin origin and the word zap.
PARENT word Of far less definite Specification,
and which is but an adyerbial form from the La
tin word o17o,eo, is put in its place. If our old
friend prina facic had 10 go-u consequence of his
former connection with the Latin tonguc-as fasti-
dous reformer as Mr.. Field, rhculd at least have
iurnished US with an Anglo Saxon successor. We
suppose poor, old habsas corpus viii be the next
victim. His long association and connection with
the progress Of constitutional liberty, will not save
him, as Er. Field will not rest in his led until he is
expungcd from the constitution Of the United States
and the next Legislature must prepare to swallow
full bottle e amendments to the New Code
One of the most curious points in this business,
has been the secrecy aud rapidity with which these