New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1869-05-15
THE NEWYORK CODE IN ENGLAND.

o made by the lawyers big and little when oar code
WAS adopted in ls48 What would they have said II any
one had prophcsed that in 81 years its reform would be
recommended 70 the British Parliament by the report OF
Royal Commission, signed by two Lord Chancellors,
the late Chief Justice OF the Common Pleas the Judges
Of Admiralty and Probate, Wee Chancellor Judge
Of the ExcleQucr Judge Of the Common Pleas, Attor-
ney-General solcitorGoneral, Pryy Councillors, Bar
rstcrs ana Solicitors. Here Is part Of it, which We
commend to the perusa Of Radicals and Conservatives
Tho world does move:
FIRST REPORT
TO TIE QUEENS MOST EXCELLENT MAJESTY
We yuur Maics.y's Commissioners, whose hands and
seals are hcIeuutO set, having been appointed by your
ure.rut constitution OF the High Court Of Chanccry Of
England the superior Courts Of Common Law at West
Hd-niTaity Of England. the Admiralty Court Of tho
Cuauc Ports the Courts OF Probate and OF Divorce Tor
England the Courts OF Common Pleas OF the Counties
Paatiuc OF Lancaster ana OF Durham respectively anu
the Courts OF Error ana of Appeal from an me s2ld soy
cral Courts aud into the operation ana clcct OF le pres
sepaIduOu and division OF Jurisdictions between H
several Courts ANA also into the operation ana elcGt OF
the present arrangement Tor holding the stinga IN Lon
don aud MdGlescx, aLd the ho!dg OF SlIRS anu as
sizes IA England aud Wales, aud OF the present DIVISION
OF the legal year into terms and vacations ana ReheIy
into the operation and effect OF the existing laws hh ar
lanecEcs for distributing and tranS1ctng the JudlclH
business OF the said Courts respectively as wen IN Court
AS ia Chambers, with view 10 ascertain "Itthe any
aud what changes and mpravcmcuts-Chcr by uniting
aud consolidating the said Courts or any ui lhcln OF by
extending cor altering The several Jurisdictions, or as
ii, 5.v matters or causes now within their Tespcc-
tive Cuguzlncc 90 any other jurisdiction or Dy altering
h uub. of Julzcs Iuthc said Courts. any OF them,
or empowering one or Judges IN any OF the sald
Courts to transact any kind oil business now transacted
Inv "A ,,r1tcr number or by altering the mode IN which
m busiur.s of the said Courts Of them, or OF the
sttiugs ana asaZgS, j. now distributed OF cuhuuCcu vi
ofbcrV sc--uay DO adyautlucousy made as 10 pro-
vide for the more speedy, economical, ana satisfactory
dispatch of the judicial business now transacted by tho
same Courts ana at the Sittngs ana respectively
and further 10 make inquiry into a laws relating 10
iuries, especially with reference 10 the qualification,
summoniIig Isminatns ana enforcing me attIiidaneS
~, ~.
more oucgut conduct OF tals OY Jury ana lhe %'eh-
your Majesty this our First Report
NTEODUCIoRr OBSERVATIONS.
In commencing the inquiry which We were directed ny
presented itself i,r consideration was the ancient avn
sion O. the Courts. into the Courts Of Common Law aud
the Court Of Cuauccry founded ON lhe "rhho"h as
tipetiou IN our law between common law and equity.
This distinction led 10 lne establishment OF two ~ stems
Of judicItUrc, organized A dH'ItAt ways ana hdlhs-
ttIug Jooiicc O." u. l'iI ~" sun
cipIcs using different methods o. procedure ana Apply
ing different remedies Large classes ot rghI, aIio-
CgthCr ignored los the courts uI common Law were pro-
c,iod ana enforced 10y the Court Of Chanccry ANA re-.
,uysc was hau 10 the same Court for inc purpose o OBJ
tanning more adequate protection dEdiH't .le NIol'l
pf ,uafuuultW rights Than the Courts OF Cuiumuu La"
were competent % afford. The common La" courts
were confined 10y their system OF procedure ~ most ac-
tiuu,-uut brought Tor recovering the possession OF lana
10 giving jUd-meut for dgbi or damages, u remedy
which has found 20 De totally insufficient Tor the al
iustnent Of complicated disputes OF modern society.
The procedure at Common Law was founded Oh the til
by iurv and was framed Tho suppusIuUu that every
experience has shown that superstition 10 be erroneous
large number of important cases frequently
~. ~ 49, c,s.. t,fler find ticir way INTO the Court
of CiaIccry. or tie smtor, u the Coarr, OF Common
Law arc obliged to have course % private arbitration
IN order to supply the detects Of their inadequate pro.
TIE evils OF this double ssem oi judica'grc and the
confusion ana conflict oi J. ur"i o hlcA u las 'eu'
The subject engaged tuc attention Of the Commission.
cra appointed u ls5l 10 inquire INTO ie constitution oi
after pointing out Of defects BOO aduu,tfl.
tom Of justice ari'inc ont OF the coae1s systems OF
VI Common Law aud Equity respectively, safe their
opinion. that practical and eHccual remedy Tor many
OF the evils in question may De found u suc transfer
or blending Of jurisdiction. coupled with such other
practical amendments, a. VIII render each Court com
Icteut 90 administer complete justice In the which
ian under Co., c0rul.aurc'
In lhc manner tar Commissioners appointed IN 1870 20
maize in tIer Second Report Very similar recomrlcn-
cation They report that 90 t appeared ig them that tho
minister Justice, ought 90 possess in u ma'uI- within
their jurisdiction tur power 90 r'e al tc redress uccrr
prevent wrongs, Wha,agr ,Eaaa- ~ lhty 20 hJIl'u
unIr, ur,rutpd ana further tat con ollal.1u OF
yg obviously desirable, not 90 say mprayriy urcr-.
sary 20 The establishment ot consistent and TatiuuaI
IN CONSEQUENCE Of these reports several % Pnrla-
mcnt have been passed FOR the purpose ~ carrying out
By Virtue of these act, the Court Of Chaoccrv now
questions % common Jaw without having recourse, a.
formerly. 60 the AID OF Common Law Court, whether
or constitute The foundation pi SUIT DO which moro
eGcctual remedy is suugAt Tor mo violation of common
can be had no common law Tue Court o. further ru-
powered take evidence orally 4u open Court, aud in
or wrongs as 90 common law; and iIal b. Jury-tEo
great distinctive feature 81 TIE common aw-has recent
~ for the first ume' yteh hIOHuceu iNIo lHo 'o1t q"
On The other hand the Courts Of Common Law are now
90 compel discovery lu ul cu-r-, il which
Court Of Equity NouR nav, 'ul'ttu ll lu guy Ih'l
tut,d for tie purpose. limited power ha7 h.ru CON
fcrrcd ON courts Of common ~" Q" kI1ll ''o.-'
tain eases 90 grant relic! from fofciufcs Iurc chlurr-
however fan far short OF tine recommendations OF the
Common Law Commissioners VINO ih ihrlf MAJ report
expressed the opinion that power Should hc conferred ON
Inc Common Law Courts 10 give. m respect ~ rights
there rccOznzcd an the protection ana I'H,e's "h'A ~
preseut can be obtained ln any Juu-dictIuu'
The alterations TO whleh We hayo I'leItu' nave no
doubt introduced considerable improvements INTO tho
procedure both ~ the Common Law aud Equity Courts
but after careful Confederation 81 uc subject, ana
Judging now with the advantage az many years expert
o. the practical working ~ the syHtem actually IN
force, are of opinion that the transfer or blending
OF jurisdiction attempted 70 De carried oat bl recent
acts OF Parliament, even 10 had been adopted 20 tue
full extent recommended by the Comm' oncTs, H. not
sufficient or adequate remedy Tor thc evils complained
Of and wOnld at best nave uuuSatcd but not removed
the most prominent Of those evils.
The authority now possessed by the Court ~ Chancery
for itself al questions Of common law has
doubt worked DcueiCaily But the mode OF taking evil
dencc orally before an Examiner instead " before the
Judge mas 10 decide the case has iust caused much
dissatisfaction; and trial by Jury-whcther from the
ctance OF the Judge Of the Counsel adopt such
from the cOmpcNity OF tho issues gener.
ally involved In the suit or because the proceedings IN
Chanccry do not give 10 many conflicts Of evil
deuce prOceedingsn other COurhas been attempted
M comUaTatycly few cases,
In the Common Law Courts the power 10 compel dis.
covcry has extensively used and has proved
saludry but the jurisdiction conferred those Courts
grant inuuc and 10 allow equitable dcfcuses be
pleaded has been limited ana Tcstriccd-tle former
only 10 where there has been actual
violation OF the right, and the latter being confined
those equitable dcfeusc3 where the Court Of Chauccry
would have granted perpetual and unconditional In.
iuncton-that these remedies have not been OF much
guenty been Obliged Ia resort 10 the Court OF ChauCcry
as before Tor the purpose OF obtaining complete
remedy.
Much therefore OF the old mischief still remains, not
tho changes which have been introduced;
and the Court Of Chaucery necessarily continues eXer
else Jurisdiction OF restraining actions at law equ
abo grounds and claims 10 exercise that jurl,dc