The weekly North-Carolina standard. [volume] (Raleigh, N.C.) 186?-1869, 1868-09-02

j before, and pending at. the adoption by the
General Assembly, of the rules of Practice
and Procedure, herein provided for, shall
be heard and determined, according to the
practice now in use, unless otherwise pro-
viedd for by said rules. i. as.
According to these provisions the duty of
the Commissioners was very simple. They
had no discretion. Their marching orders
we're severely definite, and the fact that they
managed to misconstrue them, and endeavor.
ed to go astray, is by no means compliment
AIRY to their habits of close, scholarly, observa-
ton. With bar which is nothing unless
hostile to the code, and profession critical
in the extreme, they should have avoided
snch blunder at the outset.
By the provisions of the Constitution they
had no poaoer to propide that any action to Be
hereafter commenced, no matter sobat the cause
of action on soKich ii aoas grounded, should be
gooe,ned by the old rules Of procedure.
They were forbidden by two clauses of the
inferential, in its negation of such provision.
Being separated by score of sections, the
strict coincidence of these two clauses, makes
their conjoined force even greater and more
striking.
Sec. 1, Art. w, given above, says "there
shall be but one form of action for the en-
forcement or protection of private rights, or
the redress of private wrongs.
After this who would dream of bringing
an action on the case. an action of assump-
sit, or of debit 1t cannot be considered as
referring to an indefinite future, else its pro-
visions might be futile. It was intended
and did take effect at once upon the ratifi-
cation of the Constitution. This very fact
was the very reason the Commissioners were
directed and enjoined. in the second section
of this Article to report the rules of practice
and procedure at the first session of the
General Assembly. The General Assembly
was ordered to meet on the 18th day after the
approval of the Constitution by Congress,
and at this session the Code Commission
was ordered to report q code of procedure.
This haste was rendered necessary by the
preceding section, to prevent a failure of
justice, in order that actions might be COM
menced in the new courts, which could not
be done otherwise. -.5 g.-
that actions pending at the adoption, by the
General Assembly Of the rules of practice
and procedure herein provided for, shall be
heard and determined according to the prac-
tice now in use, unless otherwise provided for
by said rules. aa-sa it aE !
It thus makes an exception to the rule
enunciated in section one, and before. con-
sidered, of all suits pending at the adoption
Of those rules. s,a
. Note, however, the language of this Sec
ton. The trainers of the Constitution were
so fearful of admitting some dubious propo-
sition, which would perpetuate the old sys-
tenn of procedure, that they even modified
this exception, by leaving it to the General
Assembly, in the Code, to provide that &C.
lions pending at the adoption of the rules,
might be transferred to the new courts uu-
der the new procedure. 1t is the most pecu-
liarly cautious section in the whole instru-
ment. and clearly shows in every line that it
was designed only as an exception to the
rule already enuneiated in section one, Eli
ceptio pro6at regular de rebus NON erceptias;
and the kindred maxim $. E1ceptio que .frmat
kgem, erpont legem," must certainly have
been familiar to two of the Commissioners.
at least for many years, and they should not
have endeavored tO ovcrturn the chrystaliZed
ioSiC vi JIG uSS3Cos III viz uaohiiSi why
have, in the provisions of Title !. of the
Code.
All that they had power to do, was to
say -,r.t
1. All actions pending at the adoption of
this Code of Procedure shall be governed by
the rules of practice now existing. Tor if they
chose, shall be covered by the provisions of
this Code according to the stage of aetion)
2. The provisions of this Code shall apply
to all actions commenced after its ratifica-
ton. -.
The last was imperative, and such is the
fact, despite all the provisions made, or
which can be made, by the Commissioners
or the General Assembly. All actions COM
menced after the ratification of the code of
procedure, must be prosecuted and deter
mined by the rules If the code. No action
can hereafter be brought under the old forms.
In reading over the above perceive that
some portions of it might be considered as
rejecting on the Commissioners. This is
not so intended. I am really friendly to the
new procedure but am truly sorry that
such an error should have been committed,
as it were adj Uminsms, at the very outset.
SULPICIUS.