New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1869-05-15


divided into as many Chambers or Divisions as Ihe ma
and extent the convenient dispatch OF business
might require .
XII suite however, should be instituted in the Supreme
Court and not in any particular Chamr OF DNls9t oI
It: and each Chamber Division should possess III we
Jurisdiction OF the Supreme COuTt with respect to the
subject matter OF the sn and with respect 10 eyeyuo
equitable grounds and should be enabled to grant suc
relief or to apply such remedy or combination OF
DO complete justice between the parties in the case be;
fore the Court or In other words, such remedies rs ~
the present Courts combined have now jurisdiction 10
PROCEDURE IN THE SUPREME COURT
The next question that arises for consideration Is that
OF the procedure be adopted the Supreme C0ntt S
above constituted We can only give sketch IN this Ro-
port Of the leading principles OF the system winch we
recommend. leaving for General Orders or Tor Coue ol
| yeopmcn aud completion OF the scheme proposed
The present modes OF procedure in the Courts OF Chan
Gerry, the Courts of Common Law the Court OF Admir-
atty aud the Courts OF Probate and Divorce I'm many
respects different the forms Of pleading are different,
tho modes OF trial and Of taking evidence different,
the nomenclature is different tho same instrument beng
called by a different name IN different Courts; almost
every step in tine cause Is different Each Court Is con
fined To It's forms Of procedure. Nor Is this diner
ence due entirely to the different nature Of the cases
which the Courts are called upon TO tsy; Tor often te
same question has to be tried, aud tho same remedy
sought by totally different method according as tue
common Law, the Court OF Admiralty. This variety
in procedure originally due 10 causes connected with
origin and history OF tho different Jurisdictions ana
It has been Influenced In some recent times Dy tho almost
complete isolation OF the several Courts and by the cir
nary rule aud practice is 10 refer the decision OF disputed
questions Of fact to jury without any appeal except by
Chauccry the Judge ordinarily IN the Courts OF Divorce
and Probate frequently, and IN me Court OF Admrdty
invariably, decides all questions OF lict ahu !aW SUBJECT
! TO appeal. 49,. .,...,, =. ,,,,,o,oos b., ,oo,,-
meut 10 be called VIII or summons ana ueso GflS Ol
summons should be issued from one Office In all cases
I'm which the plaintiff seeks 10 recover money demand
whether founded upon legal or equitable right, the
practice established by the Common Law Procedure Act
~ should WE LINZ ~ tb an nuq SOUGHT TO be- re-
covered and default OF appearance the painu shouI
Do allowed 10 sign judgment for IT, Further IN al cases
u which special Endorsement has been made on VIII,
and the defendant has appeared, tue pdlnH bhOuld DC
entitled, affidavit verifying Tue cause Oh acou ana
swearing that m his boe tcfe is no ueitse 10 ho out
summons TO show cause why Lc should not be az HOcfy
10 sign Judgment upon Whon summons SuGn o'ue' may
be made as the justice OF the cas- may REQUIRE; - ,,
In Ike manner, OF Ordinary account IS IN inc
case OF partnership OF OF o'uiy 1.
account, where hothhs more Is L,iHltu, IN NY
stance than account tho WHJ should he specially
uaorsed, and default OF appearance or aiter ap-
pggraucc, unless the utIrAu.ut 1 stat sallsiiy -
uI-e that there Is really some preliminary question 10
BIZ tried an order for the account with all usual dreo
tons, should be forthwith made inc Judge shOuu aO
De empowered 10 any ume on summary Application w
Chambers elsewhere, to direct II ho MINK It, any
necessary inquiries OF aceouusl saliuS ~ i,5
appear that there some special or further lee sought
on some special matter 10 be tred as go which may be
proper that tic suit should p'oceeu Ia inc oiuHaJ MAN
When tho defendant appearance, and the suit
has proceed further Dc cen le iu,a must
bs a,crraIued by pleading, or OtEcFWse me systems
! OF pleading IN use, both AT common law ana IN
equity, appear 10 us 10 be open 10 serious o,JeCstoha
CmIbu Ig pleading are apt To be mixed aycrueuts Of
81
a. ,ra nun Der OF useless issues while facts which
lie behind them seldom clearly disgoyerable Equity
E narrative OF the facts relied upon BY the party,
80, ,'.s ar extracts of deeds correspondence, and
other dGcuncais aud other particulars OF evidence set
Ioi h %, i ,i Irl,.rfyc byeyy Of Tie simpler
f. az common Law pleading with tue principle OF stat
ing .ielel1y ad not technically, tue substance " the
si-' ri' i.rrn a, constituting tho plaintiffs OF the
risgd4ut', case as distinguished from his evidence IL
! s uu1l tM, principle that most modern improve
f %, prsl.iis have been rounded bot tue uuttcd
] go. al 2
and Ut practice recently settled Tor the COHI2 ol ito
Ne recommend that short statement constructed on
hi, principle, Of tic facts constituting ING piNuLhs
non should be delivered 90 the defendant 1hcrcupou
tue defendant should deliver 90 t' pianli snort si'ie
mrut not OATH, ~ tho fb constituting Tue defense
l le called tar Answer MAtuueN facts are alleged ia
ial answer. tho ppntih should DE ~ liberty 10 reply.
The peadus- should MOI go beyond lAG reply save ny
si.r. u,IIu-.ou of Judge; Dui uIc Judge should 40
any tasr u. tIe proceedings, permit stch amendment ~
of actrlIhuu the real question or controversy between
c parties upon such terms. as ~ costs ana Otherwise
Ne ihinl. that q defendant having right or claim
nc4f IA plaintiff with reference 10 tue subject matter Of
Hc su ca aus!ns out ol tue s1hr .al5tclu "hien ut
present lac cannot enforce without separate or cross
sHt OF claim by ua answer which, ia that case, should
nave tuc Same uaCt II 10 we're declaration u cross
prlranrr uua Judgment between the parties with
pcct both Co ta Original ara 10 the cross demand Tue
u'"." I,'i,. d,,,pi ,t,.n I'm, a., ,i,rs 4. h.,
favor ~ Ono defendant. But Judge should ue tmpOW
cred. Application by Ie paniiH before tla 10 rciuso
permission y allow suci ross sA or claim 10 De Drought
ycucntly be aaiuuratrd upru the case 10 be tried.
Ws tluk a'so that tho Court should have power TO
direct that auy person not originally party 10 The suit,
btt who may nave such interest ln nr subject matter
thereof a 10 mako lis presence necessary xprdent
10 enable tho Court 10 do complete justice should be
summoned 20 attend tie further proceedings aud be-
UITr thereby. and that with this view ths plaintiff
should DO no liberty make any person against whom
be may himself 90 be entitled 70 rc.lrf party
d,fenGlut 10 The suit. Aud. the other hand, that.
button Indemnity or other relief over against any
other person pcrsOu. OK where fer ANY other cause
shond be- determined not ouly as between the plauuU
aud defendant but between tho defendant and any
ether prfou the Cont should have power mako sucu
order may be proper Tor Ao purpose Of having the
We think that either party should be AZ liberty ap
ply either b,fUr, or after Icailug Tor such
order be may upon tho admitted facts in me cas- be
other questions between the parties.
MODE or TRIAL.
with regard 10 the trial and determination Of disputed
questions fact the mudo of trial varies according Ia
fe Cont ma which the litigation happens Ia be- pending
without any sufficient power OF adaptation 10 the require
We therefore recommend that great discretion should
be given 20 the Supreme Court. the mode of ual,
ana that any question 10 be tried should be capable Of
beng tried IN any Division Of the Court
o. By Judge.
Cj By a jury
,JJ By Referee
The pliutid should be 40 liberty give notice OF trial
by any ono OF these modes which he may prefer subject
10 the right Of the defendant to move the Judge APP
point any other mode When tho rI Is Ia be by jury
or e referee Judge on application by either party, II
hc think the questions 10 be tired not sufficiently
ceraned upon the pcadngs should have power to order
that issue be prepared by the parties aud necessary
settled 10y himself Tho Judge should also, the app
cation or either party, power direct that any
question OF law should be rst argued. that different
questions OF fact arising in the suit should DO tried
Dy hucIeht modes OF tria aud tnat one or moro ques
tons OF fact should be tried before the others,
The system which, In all the Divisions OF tho Supreme
Court To which 1t can conveniently be applied. would
suggest for the trial Of matters suitable for trial by Ref
erees, Is as follows:
OFFICIAL REFEREES
We think that there should be attached the Supreme
Court officers be called Onca Referees aud that judge
should have power. at time after writ OF sum.
mons, and with without pleadugs, and generally upon
such terms he may think III, To order cause or any