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and settled disputes between the king's debtors and field, in 1750-1775, the action of assumpsit had come the sheriff. In this capacity the justices took the to supplant that of debt. It was extended to cases name of the Court of Exchequer. Still appeals in which the actual promise, not existing in facto, pressed heavily upon the King's Council, and Henry was supplied by a peculiar fiction. He who sought II, in 1180, divided this council into two branches, damages for breach of a specialty contract must each with a definite jurisdiction. The higher branch, choose the action of covenant. The action for treswhich became the noted King's Bench in 1268, was pass was permitted for injury to person or property. presided over by the king, when not in fact, it was As business transactions rapidly grew and scores in theory. The second branch was called the Com- of cases arose, for which no proper action had been mon Pleas, for in it were heard all sorts of civil provided, an injured suitor often found himself actions. The procedure in these courts was simple, without redress. To remedy this defect in procedyet adequate for the times. Compurgation, ordeal ure, the statute of 13 Edward I (1288) authorized and wager of battle, with which we are not con- the chancellor to permit new actions, whenever they cerned, were all abolished as the courts and common were demanded, to grant redress to a complainant. law slowly and unitedly developed into a beautiful These were called actions of trespass on the case, system which, as we shall see, became fraught with i. e., actions depending upon the circumstances. The technical rules of practice.
action of replevin originally lay for the recovery of Thus, after fully two hundred years of slow property taken by distress. In this State it became growth, William the Conqueror's ideas were realized. the only action for property wrongfully withheld. The Anglo-Saxon popular and franchise courts had The action of trover, at first, lay for goods stolen, been thoroughly supplanted by the three great Eng- the finder having refused to deliver possession. lish courts (1) the King's Bench, (2) the Exchequer, Later it was extended to cover cases where damages (3) the Common Pleas, all of which were, by a only were claimed for property wrongfully taken and provision in Magna Charta, permanently established detained. at Westminster Hall in 1224. For six hundred years These illustrations are but phases in the early these courts continued to administer the common law development of procedure. For a few centuries the of England. Within these courts law developed history of procedure is a history of the creation of from its rudimentary form into that system which various forms of action, originating from time to has so adequately supplied the needs not only of time to further the object and usefulness of those England, but the early needs of that greatest of all courts, whose formation we have noticed. The nations, America. The growth was slow, but forms of action, like the courts that permitted them, healthy and strong. The modes of seeking redress were of slow development. They grew most rapidly were, at an early day, meagre yet typical of the un- from the reign of Henry II (1154) to the reign of cultured suitors who sought justice. It is the prac- Henry III (1272), which was known as the golden tice in these courts, which gradually became technical age of forms. To weary ourselves with a detailed and failed to mete out justice, that we propose to description of how these various forms of actions briefly study and then place along beside it our arose, and with what each dealt, would be a matter reformed procedure.
of history, with which we in our practical treatise Under the common law all actions were divided are not particularly concerned. We only mention and classified. At an early date the formal actions, and note their existence and slow development, that so called because provided for and formed by com- we may later see through them the beauty and mon law were (1) real, (2) mixed and (3) personal simplicity of our reformed procedure. actions. Real and mixed actions lacked that element It was absolutely essential that some one of these of elasticity which the times demanded, and slowly forms of actions should be selected by him who there gathered about them such a fungus growth of sought legal redress; equally essential was it that he subtleness and intricacy that the most ingenious should choose the proper form. Otherwise he must insight failed to distinguish between them. As other fail. Each and every action was begun by an origiactions were fictitiously brought, summarily dispos- nal writ, which later became the writ of summons. ing of questions affecting real property, these actions Thus did the common law pass under the dominion were abolished in the reign of William IV. Personal of a system of writs, issuing from the royal chancery, actions, brought for the recovery of goods and chat in the name of the king. This was made possible tels, for money damages, for non-performance of because of the exceptional vigor of the English kingcontract, for injury to person and property, were ship and the exceptional malleableness of a thor(1) actiones ex contractu. These were divided into oughly conquered and compactly united kingdom.” (a) actions of debt, (b) assumpsit, (c) covenant, These writs were not based upon theory, but they (d) detinue and (e) account. (2) Actiones ex delicto, came into existence simply to meet the demands of which were (a) trespass, (b) trespass on the case, changed conditions and people. Originally they (c) replevin, (d) trover. If a liquidated sum of had no connection with the relief sought, but in money were due a person upon a simple or specialty course of time the writs, returnable in whatever contract or record, then debt was the proper action. court the suitor desired, giving that court jurisdicUpon the increase of commerce and the interming- tion, “came to be the only appropriate form of an ling of peoples and through the efforts of Lord Mans-'action for a particular redress.” So it fell from the
mere choosing of an action to that of selecting the and abuses crept in. Pleadings became artificial and proper writ.
formal. Form and not substance was the charPollock and Maitland tersely describe the system, 'acteristic. In medieval times there was nothing left in speaking of the chancery out of which we have of justice in the sphere of practice. The value of seen these writs come. “It constitutes every weapon general rules of practice, tempered by judicial of medieval warfare, from the two-handed sword to authority, was yet to be learned. The God of Justhe poinard. The man who has a quarrel with his tice had become deaf to the entreaties of her suitors, neighbor comes thither to choose his weapon. The unless they appealed to her in accordance with choice is large; but he must remember that he will some revered form. Were it possible to justify the not be able to change weapons in the middle of the assertion that “law is a lie and all lawyers are combat, and also that every weapon has its proper use liars” it was the common law practice. and may be put to none other.” At an early time, the The growth of common-law procedure was English race has turned its eyes from the fascinating natural evolution, passing through what Pomeroy pages of Corpus Jures and made the grand experi- calls three successive stages. First, use of fiction ment of the “ formulary system,” which for centuries to evade arbitrary rules, with the appearance of preburied justice beneath its mountain of technical and serving them. Second, the introduction of the arbitrary rules, whose slow growth was conditioned equitable side of law, which tempered the harshness upon and perturbed by political and social motives. of the methods of procedure. Third, direct legislaLittle did they think their writs would run in the tion, affecting changes in procedure. It was “the name or kingless commonwealths on the other shore necessary growth and consequence of the gradual of the Atlantic."
refinement of English jurisprudence through a sucAs the forms of action, and consequently the cession of centuries." Rule after rule served to writs, increased, the relief granted became more mystify and confuse the whole subject of procedure, technical. The courts, too, had fallen into the prac- i which degenerated into a science of pedantic forms tice of closely following precedents. Through this and of "endless technicality, trivial niceties, exceschaotic confusion and labyrinth of “fiction,” prece- sive refinement and prolixity.” It expanded most dent and injustice, the suitor wended his way and during the fifteenth and succeeding centuries, under sought redress of the king, who was free from the the stress of eager rivalry with equity. Austin says, formalities and precedents which shackled the com- “ equity arose from the sulkiness and obstinacy of mon law. The Earl of Nottingham, “father of the common law courts, which refused to suit themequity," chancellor in 1673, master and defender of selves to the changes in opinion and the circumlaw, aided by the extension of trade and the abolistances of society." Yet equity which had early tion of feudal tenures, thus laid the foundation for toned down the harshness of common law, had too, a court of chancery, upon which has grown the most fallen into technical and formal ruts. Two systems perfect system of equity jurisprudence throughout of law, developed through centuries of turmoil, Europe and America. This went a long way toward technical, inconsistent, full of fiction, tautology, ameliorating and refining the harshness and injus- trivial niceties and injustice continued, in our own tice of the common-law practice. Slowly the com- modernly civilized day, until beneath the folds of mon law followed in the trail of advance procedure, their garment justice itself became smothered. made by equity, which threw off the yoke of tech
When George III ascended the throne, political nicality, inflexibility and injustice.
and social philosophy was arousing both England The suitor, having determined his form of action, and America from their legal lethargy. Judge swore out a writ of summons, issued by the chan- Dillon in his Jurisprudence of England and America cellor in the name of the sovereignty, calling defend- says that in the early part of the nineteenth cenant to answer plaintiff's charges. When the parties tury, * The common law in its substance and prohad appeared, the next step was the pleadings. cedure, was everywhere and by everybody, regarded There were the declaration, the plea, replication, re- with veneration and with superstition to the verge of joinder, surrejoinder, rebutter and surrebutter. Our idolatry. It was declared to be the perfection of statute went one step farther than that of Queen reason. Lord Eldon, in the Court of Chancery, with Anne and permitted many replications to the plea. its suitorcide details, pressed heavily on mankind.” How complicated it must have been when the Against this system Benthain began his attack. EnAttorney-General, in the case of the People v. The tering the English legal field, with bright prospects, Kingstown and Middletown Turnpike Road Com- he found procedure to consist of “a fathomless and pany (23 Wendall, 193), replied with thirty replica- boundless chaos made up of fiction, tautology and tions. We need not describe these pleadings. In technicality.” Although he spent his life in the theory the parties could go with this cross cause of reform of both substantive and adjective wrangling and legal firing ad infinitum. Written law, without seeing the anticipated results, his work pleadings were not introduced until the reign of was not in vain. Catching his inspiration, Lord Edward III (1327), from which time the science of Brougham and Austin carried Bentham's reform pleading began to degenerate into arbitrary rules. forward. It takes a bold man with broad views and The early simplicity was gone. “Trivial niceties unyielding mind trained in actual practice to prepare
and revise a method of legal procedure. To do this to use the term, is started in motion by a simple thoroughly, to prepare a simple and practical system summons; has the same general make up and is of procedure was reserved for, and the credit be- oiled by the same elementary rules in every kind of longs to, an American, a New Yorker, with keen and action. Its beautiful simplicity of form, a principle broad views, a strong energetic and practical turn which must lie at the foundation of the whole of mind, who could and dared wend his way through 'system of any practical remedial law, is its attractive the entanglement of procedure underbrush, out into feature. The plain and concise statement of the the clear, open and plain field of adjective law. | facts, upon which a plaintiff bases his cause of
David Dudley Field was such a man. From 1837- ; action, is another great mark of improvement. It 1847 article after article appeared expressive of his takes the place of technically framing the issue views and boldly denouncing the common-law prac- under the common law. It was quaintly said of the tice. As a result of his persistent agitation, the con- ! common law practice that “Truth is not properly a stitutional convention of 1846 directed the legislature quality of pleading." The reverse of this is the to appoint a committee of three, to prepare and pre- cardinal rule in our procedure. Substance and not sent a uniform course of procedure by sweeping form governs. Probably outside of the basil prinaway all the old forms of action and pleadings. ciple of our procedure, sweeping away old forms This committee, whose chairman was Mr. Field, and establishing uniformity of action, nothing so was duly appointed. Accordingly, on February 29, marks the advance in procedure as the literal allow1848, Mr. Field reported complete a Code of Civil ance of amendments, and interpretation of the comProcedure, containing only 391 sections. This be- plaint. The principle couched in section 723 of our came the New York Code of Civil Procedure, a Code, is beautifully expressed in the words of Judge model whose influence has spread across the water Andrews in 83 N. Y. 14. When speaking of a comand has been substantially the foundation of the plaint, he said, “It will be deemed to allege what practice for the bulk of the English-speaking people. can, by reasonable and fair intendment, be inferred It has been followed by fully one-half the States of from the allegations." This disposition to deal our Union. This original Code, together with the liberally with amendments has smothered much of Penal Code and Code of Criminal Procedure, the asperity of practice. framed by Mr. Field and adopted by the legislature In commendation of this innovation in in 1881, form a lasting monument to his memory.
methods of procedure, we must not be led so far as We have but mentioned the slow development of to overlook the defects existing in the system, whose procedure, starting from its ancient, crude and un- simplicity and uniformity, in contradistinction to the just methods and passing through the stages we have abstruse, technical and formal common law practice, suggested. Lest. we might be guilty of prolixity, is its strong characteristic. There are many wellbriefly have we noticed the practical working of deserved objections to our Code practice and the common-law practice. Let us naturally turn and way by which the rules are revised and amended. note the distinctive features of this, our reformed | The Code of to-day, as encumbered with “unnecesprocedure, in contradistinction to that system we | sary verbiage, diffuse statements, unscientific and have been studying. Let us see if there be anything illogical arrangement,” is not the work of the in the way of its further development for practical master, who denounced it as an "example of what use; if so wherein lies the defect, and how shall we a Code ought not to be.” It violates the bed-rock devise a remedy.
principle of a Code of Civil Procedure, simplicity. The distinctive features of our reformed proce- It has tended in later years to check the reform in dure, its purpose and object, were most clearly stated many States and set the pendulum swinging backby its author at the time of its adoption, as “the ward toward common-law practice. demolition of the forms of action, abolition in that The present New York Code of Civil Procedure respect of the distinction between actions at law and bears but slight resemblance to that of its predesuits in equity, and the substitution of one form of cessor. In 1870, by legislative enactment, a action for the enforcement of private rights and the mittee of three, the head of which was Montgomery redress and prevention of private wrongs, in which Throop, was appointed to revise the statutes of action should be determined all the rights of the 1828. Instead of carrying out the work for which parties, legal and equitable, with respect to the sub- they were appointed, they revised the Code of 1848, ject in litigation.” The “ Civil Action” created is which had been in use about twenty-two years. the one action to settle all disputes and controversies With the reason for this interference we are not arising between private suitors. Under the common here concerned. We are with the result. Every practilaw, “The client was unthought of
The tioner upon whom the subject is daily forced, is fully right was nothing; the mode of stating, everything." | acquainted with the unnecessary and cumbersome Such a system of remedial law has gone to rest bulk of our Code. Its many complications and and now, necessary to understand procedure as it is, vicious phraseology; its commingling of adjective it has fallen from its place of first importance and and substantive law; its violation of all rules of has become equal, yea of secondary importance to systematic arrangement, all of these, too well known one's rights. This improved machinery, permit me to a New York lawyer, have defeated the ends of
justice and codification — simplicity. And yet the 'sary to orderly and convenient practice." Second, Code of to-day, under which the legal profession are because of the attempt to provide for individual compelled to work, is not that which Mr. Throop cases, by the frequent adoption of new sections and originally submitted to the legislature. As we shall parts of sections. In the words of Chief Judge shortly see, another element has crept in, which has Parker, of the Court of Appeals: Certain it is that heaped evil upon evil.
we will not get any Code that is satisfactory to I, with but a glimpse of actual practice, need not anybody so long as each individual member of the illustrate these many and recognized defects, by ' legislature finds it necessary to have passed two or pointing out particular sections in our Code. What three separate amendments to relieve constituents I say is based upon slight experience, careful study who are embarrassed by present litigation.” Third, and observation and diligent inquiry. Mr. Field, because it has been and is necessarily brought about in denouncing the adoption of the present Code of by legislative action, adopting rules without conProcedure, predicted its inefficiency because of its sideration, thus requiring for their interpretation, impracticableness and bulk. That these objections judicial decisions and subsequent amendments. are fully realized by the profession, burdened with This greatest of evils, in the way of our Code's such cumbersome and conflicting rules, upon which further development for practical use, is illustrated has grown a mass of precedents and decisions, is by the large number of amendments since its clearly shown from the recently expressed opinions adoption. of most eminently qualified men. Hon. J. Newton This Code tinkering," from a small beginning, Fiero, while president of the New York Bar Asso- has developed into a full-fledged system. Chief ciation in '93 said: “In spite of the fact that a Judge Alton B. Parker, in an address before the portion of it has been before the public for more New York Bar Association, in '93, said, that the than sixteen years and has been the subject of an number of amendments to the Code of Civil Proenormous number of judicial decisions, explanations cedure, from its adoption to '93. were 836. Hon. and interpretations, entangling endless labor and J. Newton Fiero, Dean of the Albany Law School, countless expense, it must be said that it is crude, in an address before the Michigan Bar Association, diffuse, badly arranged and illy adapted for the pur- in May, '96, on the subject of “The Reformed pose for which it is intended, viz., simplification of Procedure,” stated the amendments from 1893 to procedure in the courts. The Code of Procedure as 1895, inclusive, to be 211, aside from the 100 amendit now stands needs revision, rearrangement and re- ments caused by the enactment of the new Constituconstruction, it must
or later; the tion. In following out the statistics, the writer finds earlier the better." Joseph H. Choate, in the annual that since '95, there have been 319 amendments, 93 address before the American Bar Association said : of which were entirely new sections. When the “Take our own New York Code alone, the degener- present crop shall have been placed into the store ate mother of so many illegitimate offspring; it has house, we doubt not that the usual percentage of grown to be a monster of more that 3300 sections, yearly amendments will have been preserved. That each pregnant
procedure.” William these amendments are anything but simple, concise, Hornblower, in the annual address before the plain and commendable, one need only try to master Indiana Bar Association in '93, said: “Our Code section 1538, entitled Who must be parties," and of Procedure has grown to elephantine proportions, covering two full pages. Plainly, unless this evil with minute details regulating every step of litiga- be eradicated, in a few years our Code of Civil tion." It is no wonder that the New York pro- Procedure will be a volume of statutes, with not a cedure, pioneer in the greatest of all legal reforms, perceptible sign of rules of practice. This departure has degenerated from its lofty and practical posi- from the Field simplicity, has brought an evil, distion. It has rightly become the object of criticism grace and imposition upon the system of procedure. and ridicule. Yet, all this is no argument against In our methods of practice we have fallen behind the codification of rules of practice. It is simply against demand of modern thought and action. Yet the the manner of codification and method of per- system is not at fault. The defect lies in the subpetuating the system.
stance and form of this system. In the manner of Our reformed procedure has arrived at this gen- maintaining, improving and perfecting our reformed erally recognized and much lamented stage of procedure, it has degenerated into a glaringly and development, first because it has attempted to define Nagrantly inconsistent and defective system, in which the rights of parties with great particularity and lies concealed the germ of modern procedure. detail. It is not comprehensive but minute. It
Marred with so many defects and fettered with strives to cover every possible condition which may numerous disadvantages, there seems to be somearise. This is impractical and impossible. It vio- thing in the system which commends itself to the lates the principles of simplicity, adaptability and administration of justice. Should we discard enpracticability. This difficulty has been clearly tirely the system because of its defects which go avoided in the practice acts of Maine, Massachusetts only to the substance and mode of revising or rather and Connecticut. These acts “embody in a clear cling to that system, in which is every element of and concise manner the rules and regulations neces- I simplicity, justice, expediency and practicableness,
and seek to tear out, root and branch, the defects front ranks of the world, in her system of procedure. and render the system convenient alike to lawyer Since '93, the New York Bar Association has been and suitor?”
persistent in its demands for a real revision of the While the procedure of New York has floated Code. This agitation has come from men thoralong into a degenerated condition, inadequate for oughly competent for the work, by reason of wide present purposes, our English brethren who took legal experience and a thorough study of systems of their inspiration from the Field Code, have gone procedure in vogue elsewhere. a long way toward solving the difficulty. By an act Not yet has this development of procedure reached of Parliament passed in 1873, the Supreme Court its goal. We must either rise or fall. Evolution of Judicature was created. The act, containing does not cease, until the perfect state. And when about 200 sections, provided for the organization of our conflicting, incongruous and illy-adapted prothe courts and defined their powers and duties. It cedure shall have been reduced to simple, clear and clothed the courts with power of making rules for concise rules of practice; when these rules shall have the purpose of carrying out those provisions, which come to take their origin from that source which were deemed proper and desirable methods of prac- shall give them permanency; when in the fullness of tice. Embued with this power the courts accordingly time, our reformed procedure shall have achieved its adopted about 1,000 sections. Thus was completed a full stature, then shall the profession have come out simple system of remedial justice. Speaking of this from its wilderness of rules and decisions, and system, Lord Chancellor Cairns is reported to have basking in the sunlight of a simple, just, elastic, yet said: “There has been found in their workings a permanent procedure, be freed from the unjust critidegree of philosophy, of simplicity, of uniformality cism of the world. and of economy of judicial time, which has secured
STEPHEN S. READ. the best results.". Lord Chief Justice Cockburn ALBANY, N. Y., 1902. said : " It has simplified and improved our procedure." Undoubtedly this system would be illy adapted to our needs, yet it is free from a large num- SHOULD EXPERT WITNESSES BE ber of objections hurled at our code of remedial law,
“RETAINED"? enacted and modified from year to year by legislative action. May not New York profit by their example? It is customary for lawyers, when engaging the May we not have our Code of Civil Procedure torn services of expert witnesses to offer to “retain " up root and branch and revised that we may again them. And lawyers speak of the fees paid experts get in touch with the industrial interests of our for preliminary work as “retainers.” land? May we not have the rules of courts collated I believe this use of the word retainer to be wrong, and all statutes relative to procedure, reduced to and I do not think it proper for any expert witness rules and united and condensed into a perfect system to allow himself to be retained. of procedure? May not the legal profession, com- The mere payment of a fee for preliminary work posed of the best trained minds, thoroughly ac- and report should not be considered as the purchase quainted with the rules necessary for practice, price to silence the witness — and this is what a frame and adopt in the first instance these rules? “retainer" paid to a witness would do and nothing Then may they not go to the legislature for final else. adoption? Should not the legislature be prevented In my practice as handwriting examiner I never from changing these rules, necessary for convenient allow myself to be retained. There can be no repractice, by subsequent legislation, without the con- tention with me. The preliminary fee is not to be sent of the courts by whom the rules were first applied on an indefinite performance, but for a adopted? All this surely is not theoretical, but prac- specific work — the necessary investigation to enable tical, reasonable and possible. This would stamp me to report “yes” or “no” to my clients. If my our system of remedial justice with permanency, investigations lead me to a conclusion adverse to the simplicity and adaptability and commend it to the contentions of my client, then my fees, work and har generally.
connection with his side of the case stop. Difficult as are the rules of practice to master, in Severing my connection with this side of the case meaning and application, the young practitioner feels doesn't mean that I start to form (directly or inthe need of reform but faintly in comparison with directly) a connection with the other side; but it those who are well acquainted with present practice. does mean that should the opposite side approach It is a sad thought that our own State, leader and me that I feel at liberty, and with a clear conscience. pioneer in reformed procedure. should have degen- i to serve them. erated into such a codical wilderness. But from Most lawyers agree that this is the proper course the present consensus of opinion, and concerted to pursue, but a minority do not think it is. The action of the New York State Bar Association, it minority lawyer is so bound up in his own customs looks as though our statutory procedure would be ' - and for so many years has been retained himself. wiped out and supplanted by a simple system of and has retained others, that he cannot understand rules. Then would New York again stand in the / why the mere payment of money to an expert does