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the like remedy, no writ is to be found, the clerks of the chancery shall agree in making a writ, or adjourn the complainants until the next parliament, and shall write the cases in which they cannot agree, and refer them to the next parliament; and by the agreement of men learned in the law, a writ shall be made, lest it should happen, tha: the court of the king should be deficient in doing justice to complainants." This statute was probably intended to relieve the chancery from all doubt, in regard to the power to devise new writs; but it seeins to have been construed in an illiberal spirit: and the authority conferred by it was restricted, to the making of writs in like cases wiih those already provided for. It was not supposed to give or recognize any right to frame such instruments, for cases entirely new; which could therefore only be provided for by the authority of parliament. Many new writs, howerer, were framed under this statute, according to the principle contained in it, that is, in like cases, or upon the analogy of actions previously existing
“One principal branch of the duties of the chancellor and his clerks, was, as has been seen, to receive applications or petitions, for the redress of legal injuries, and to furnish the petitioners with writs adapted to their respective cases.
These instruments had, hitherto, been merely the means, by which the king's justices or courts were authorized to do justice to the petitioners. But now, they had assumed a new character; they were invested with the authority of precedents; were considered as evidences of the law; their form could not be changed; and no new one could be framed but by the aid of parliament. Plaintiff's still commenced their proceedings, by an application or petition in chancery, for the proper writ; but if none could be found in the register, adapted to the case, and if none could be frame.l under the statute above mentioned, the petitioner was without remedy, but by an act of parliament. The register of writs, instead of being a book of mere forms, to expedite business, and lighten the labor of the chancellor and his clerks, had now, without any express legislative sanction, become a compendium of legal remedies,
“If the desendant neglected to appear, in obedience to the original writ under the great seal, the court, to which it was returned, then issued a judicial writ, (in which the original was recited,) the object of which was to compel the defendant to appear. „But as it often happened, that the defendant neglected to appear on the original, and the issuing of the judicial process thus became necessary, in almost all cases, it gradually became the practice to dispense with the original, and to commence the proceedings with the judicial process, in the first instance; the court being willing, in order to prevent delay, to suppose that the original writ had already been issued and returned. The judges, however, though they might evade, could not repeal the law. The original was still necessary, and the want of it might, in scme cases, prove fatal to the plaintiff's cause. But it was permitted to be obtained afterwards, and filed in the court, “ with a proper return thereupon," says .Blackstone, " in order to give the proceedings a color of regularity.” It became rot unfrequent, also, for the saving of time, trouble and expense, to sue out even a second judicial writ, in the first instance; thus supposing not only an original, but a judicial writ, to have been sued out and returned; "and this fiction,” the same author remarks, “ being beneficial to all parties, was readily acquiesced in, and is now become the settled practice; being one among many instances, to illustrate the maxim of law, 'in fictione juris consistit æquitas.""
" When this practice became established, it completed an entire revolution in the mode of commencing an action. Plaintiffs no longer applied by petition, to the chancellor, for writs adapted to their respective cases; but the forms of writs were settled and fixed; they were granted by the proper officers of the court, as a matter of course, without inquiry or examination, upon payment of the established fees; and the selection or application of them, in practice, had become the science, if such it could be called, of the attorneys. When a party had sustained an injury, which required redress, he applied to his attorney, who determined upon the proper form of writ, and sued it out accordingly."
From the period of which we have been speaking—a period comparatively benighted and ignorant, in all that is valuable in science to the present, these forms have been adhered to with a sort of bigoted devotion. While the principles of legal science have expanded and adapted themselves to the exigencies of each successive age, through which they have passed, we find ourselves met with the standing argument against in provement, that the timne-honored institutions of ages must be held sacred, and that these forms, which may have been well suited to the age in which they originated, must be left untouched. Is there, in truth, any soundness in such a doctrine ? Can it be possible, that the progress which has characterized almost every age since that period, and which is the distinguishing feature of the present day, must stop in its application to the machinery by which rights are to be vindicated and wrongs redressed ?
While we' are disposed to respect the opinions of those who differ from us, we cannot admit that these questions are difficult of solution. It seems to us, clear, that neither the forms of remedies, nor the mode in which they are stated, require the complexity, in which both are now enveloped. The embarrassments, to which they have given rise, have resulted from no difficulty in determining the real rights of parties, but simply in the ineans of enforcing them ; and in this respect, we feel no hesitation in recommending, that the retention of forms, which serve no valuable purpose, should no longer constitute a portion of the remedial law of this state. courts be hereafter confined in their adjudications to questions of subtantial right, and not to the nice balancing of the question, whether the party has conformed himself to the arbitrary and absurd nomenclature, imposed upon him by rules, the reason of which, 'if they ever possessed that quality, has long since ceased to exist, and the continuance of which is a reproach to the age in which we live.
8 62. The distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished; and, there shall be in this state, hereafter, but one form of action, for the enforcement or protection of private rights and the redress of private wrongs, which shall he denominated a civil astion.
$ 63. In such action, the party complaining shall be known as the plaintiff, and the adverse party as the defendant.
$ 64. A judgment recovered in any court of this state, shall not be the subject of an action between the samo parties in the courts of this state ; but the remedy for its enforcement siiall be limited to proccedings in the action in which it was recovered, or supplementary thereto, as hereinafter provided.
As the law now stands, the party who recovers a julgment may sue upon it, and repeat the process as often as he pleases. Thus it may happen, that, though by law execution cannot issue upon a judgment until after thirty days, and even then, a return cannot be compelled within sixty, yet the judgment debtor may be sued upon the juilgment, wiihout the delay of a day. Nay, the party may continue suing upon the judgment, (so it has been held by one court, at least,) till the expenses, heaped upon expenses, exceed the original debt. It is no answer to say, that this is not often done ; the law perinits it, and advantage is sometimes taken of the law. Not a word can be said in favor of so monstrous an abuse. This section will put an end to it.
$ 65. Feigned issues are abolished; and instead thereof, in the cases where the power now exists to order a feigned issue, or when a question of fact, not put in issue by the pleadings, is to be tried by a jury, an order for the trial may be made, stating, distinctly and plaints, the question of fact to be tried, and such order shall be the only authority necessary for the trial.
That it may be seen, what this will abolish, and what we propose to substitute instead, we subjoin the present plordians on a frigned issue, and the form of the question, as we woulu bare it stated. The pleadings are as follows:
DECLARATION.-New-York, ss.--John Doe complains of Bei chard Roe being in custoly, &c., of a plea of trespass on te case ; for that whereas on the first day of May, in the year af our Lord one thousand eight hundred and forty-seven, at time city of New-York and county of Neur-York, a discourse ** had and mored by and between the said John Doe of the disc part and the said Richard Roe of the other part, of and concerning the title of one William Smith to certain larids in the town of Newburgh, in the county of Orange, which, lrg centra tain articles of agreement set forth in a certain bill ci coplaint filed in the court of chancery of the state of New-Yack, by the said. William Smith against the representatives of The mas Edwards, deceaserl, and proved in the said cause, ike main William Smith had agreed to convey to the said Thomas Edt wards in his life time, and to which the said William Saritz claimed to derive title through one James Horton, and what ther the said William Smith was or was not seisod of 2x aka lute estate of ir.heritance in the said lands, and whether a tain paper writing proluced by the said complainant beface Moses Hale, Esquire, one of the masters of the said court, wise the reference to him in the above cause, purporting to be a deed from Henry Simpson to Lewis Stiles, and to bear date sa the sixteenth day of March, one thousand eight hundred and nine, was executed by the said Henry Simpson. And apua such discourse the said John Doe then and there asserted and affirmed, that the said paper writing, so proluced before Moste Hale, Esquire, one of the masters of the said court, upon the reference to him in the said cause, purporting to be a dod