English statutes - Former statutes relating to practice.

sidered advisable to leave those matters almost entirely to the judges themselves, because, from their daily observations and their long experience, they could best appreciate the expediency of any new measure of that nature. The Code furnishes a statutory system of practice, but it also gives the judges power to modify or abrogate rules and forms in proper cases, without the trouble, expense and delay of applying to the legislature. This authority relieves the court and the judges from the difficulties which would exist were every rule and form a technical, statutory one which could not be departed from in practice.

The provisions of the Revised Statutes, relating to the former practice at law or in equity, may be readily found by any one who may desire to examine them.

Section 2. English statutes. The practice of this State having originally been founded upon the English system, it was natural and convenient to adopt many of the English statutes relating to practice. And, during the entire existence of this State the statutes of that country have been examined, and frequently portions of them enacted by our legislature, with such modifications as might be required.

Section 3. Former statutes relating to practice. While the Code was designed to introduce a new, as well as a complete system, so far as that was practicable, yet it was not intended to repeal or abrogate those statutes relating to proceedings in the courts, in those cases where there was no conflict between them and the Code, and where such statutes were as useful now as heretofore. It will be found, on examination, that there are many cases for which the Code does not provide, and for which existing statutes furnish the desired remedy, and, in such cases, the old statute is as much in force as when first enacted. It is neither practicable nor necessary to enumerate all such cases, for, by merely calling attention to the subject, and stating the rule in relation to former statutes, enough has been done for all practical purposes.

Section 4. All statutes of equal authority. It is important to remember that, while the Code furnishes most of the general rules of practice, yet all former statutes, not expressly repealed, or rendered obsolete by later statutes or the constitution, still remain in full force; and they possess the same authority they ever did, or that any other statute now possesses.

This principle is clear as well as obvious, and yet it can do no harm to mention it, as there are some who may think that the Code

Statutes relating to special subjects.

has gone further toward repealing all previous statutes than has actually been done. There are statutes which were enacted after the Code, and they modify the practice established by it, although no reference is made to its provisions. By section 114 of that act, provision is made in reference to actions by or against married women, and yet, by the Laws of 1860, chapter 90, and Laws of 1862, chapter 172, section 7, a material change is made in relation to actions brought by married women. Construction is given to this act in Rowe v. Smith, 56 Barb. 417, 38 How. 37, affirmed, 45 N. Y. (6 Hand) 230, in which it was held that the husband need not be joined as a defendant in an action against the wife, for a trespass committed by her cattle on the plaintiff's lands.

The general rule of construction of statutes is, that where a new statute does not, in terms, repeal an old one, both will stand together, so far as effect can be given to both, for repeals by implication are not favored.

Section 5. Statutes relating to special subjects. The public advantages of general laws over special legislation is well understood. And in no case is the evil of such legislation more conspicuous than in matters of practice. Special statutes which affect general rules of practice seldom fail to cause inconvenience, and to unsettle the law and render it incongruous. There may be cases which require special legislation, owing to some defect in the general laws, but it can seldom be the case that an amendment of the general law will not afford adequate relief; and, by this method, there will be less danger of inconsistencies and contradictions between the statutes. It is not intended to discourage the enactment of special statutes where they may be necessary, in order to secure the attainment of justice, or to furnish a sufficient remedy where the old one is insufficient and ineffectual.

Section 6. Necessities for special legislation. There are instances in which legislation for particular cases is indispensable. Where the practice is created by statute, and it is defective in material points, which the courts have no power to remedy, legislation becomes a necessity, or the ends of justice will be defeated. There may be cases in which the practice is so general that it may be perverted so as to injure the interests and rights of others; and in such a case, special legislation which will restrain or prevent the evil will be a public benefit. The granting of injunctions. against corporations, and restraining them in such a manner as to

Effect of statutes upon decisions- Decisions of the court.

cause serious loss, is an instance in which a statute was passed to secure the rights of corporations. See Laws of 1870, ch. 151.

Section 7. Effect of statutes upon prior decisions of the courts. When the courts have established a rule of law by solemn decisions, no statute is needed to add to their validity, or to give them full effect. But it frequently happens that the decisions of the courts are rendered obsolete and of no effect. Where a statute introduces a rule which directly conflicts with prior decisions of the courts, such decisions are no longer law, although no reference is made to them by such statute. It is in this way that many of the older decisions, in relation to practice, have been rendered valueless as authorities. Where the Code or any other statute has established a rule, all former inconsistent rules founded upon the decisions of the court must be disregarded, and the statute rule followed. There are other cases in which the statute and the prior decisions are in harmony; in such cases the authority of those decisions remains unimpaired, and they may be resorted to for an exposition of the principles, as well as of the reasons, upon which they were made.

ARTICLE IV.

DECISIONS OF THE COURT.

Section 1. English and American law and equity decisions. The practice of the courts of law and of equity was mainly established by the decisions of those courts. And from the time that a regular system of practice was settled, the volumes of reports of the English and the American courts have been resorted to as the main source of information in cases of doubt or difficulty.

Section 2. Construction of statutes. During the entire existence of these courts there have been statutes relating to the practice, and they have been examined as occasion demanded; but, notwithstanding the existence of such statutes, the true rule of practice has generally been sought for in the reported cases. This was natural, and almost unavoidable; for, although the statute might be imperative and controlling, yet there were so many points unsettled in relation to the true construction of its provisions, that the courts really settled what the correct practice was even when it was founded upon a statute.

Construction of statutes-Supplying defects in statutes.

Our own system of practice furnishes the strongest illustration of this statement. The Code of Procedure was designed to simplify the practice and reduce its provisions to the smallest practicable compass. It has been in force something over twenty years, and, yet, where is the settled practice now found except in the volumes of the reports which are now numerous, but still rapidly accumulating. There is scarcely a line or a word in that act which has not been the subject of a decision, and, notwithstanding that fact, it is found that questions of practice are constantly before the courts for the purpose of establishing what some clause of the Code really declares.

When it is also remembered that the language of the statute has sometimes been capable of different constructions; that there were numerous judges in the different courts, each of whom was called upon to give a construction to some of its provisions; that many of these decisions were made without the advantages of consultation with the other judges, or of examining their decisions, because, though written, they had not been published; and, when in addition, there must be those natural differences of opinion among judges even when they have heard the same arguments, and read the same statutes and decisions, upon which they are to found their judgments, it is not strange that there has been a want of uniformity in the practice, even when uniformity was one of the great objects of enacting the statute.

The legislature may yet improve the Code and add to its value, but it will still remain for the courts to carry its provisions into effect, and to establish a complete and harmonious system of practice. Much has already been done in that direction, and every year will add to the number of points which the courts will regard as finally settled. But, while the causes which lead to conflicting decisions continue to exist, so long there must be some doubtful points of practice, yet these will form but a small portion of the entire system; and the profession may, therefore, indulge the hope that a well-considered, convenient and harmonious practice is not an impossibility even when legal and equitable remedies are administered by the same court.

Section 3. Supplying defects in statutes. One of the most useful provisions of the Code is that which permits the court to resort to the old practice for the purpose of supplying any defects which might be found in it. The general plan or framework is established by this statute; but it does not, and in the nature of

Decisions more flexible than statutes - Rule for all cases.

things it cannot, anticipate and provide for all possible future cases or contingencies. Such defects must be supplied from the vast resources of the common law, and of the equity systems of practice. It is by the use of such authorities that justice may be obtained in all cases; and that a full and complete system may be reared under the vigilant care and by the directing judgment of a learned and honest judiciary.

Section 4. Decisions more flexible than statutes. Where a statute prescribes a rule it must be obeyed, however inconvenient or unjust its requirements may be, for the rule is unbending. The courts have settled it as a principle, that, when a point is once fully settled, it will be followed as an established precedent. This, however, is not an inflexible rule, for it is not at all uncommon for the court to reconsider questions decided, and, upon further consideration, to reverse the previously established rule, and to lay down a different and, perhaps, conflicting doctrine. This power of the court is an invaluable one; for, while it secures all the stability which is desirable, it is also so flexible that it will bend to meet the wants of justice or of public convenience.

Section 5. Furnishes rule for all cases. A statute furnishes a rule in those cases which are expressly provided for, or which are included in some of the incidents of it. But it has no power of extension to new cases, by the mere act of the court. Under the former common-law and equity systems of practice, the courts were able to furnish an appropriate rule of practice for each case as it arose. And it was this quality which enabled those courts to create such wonderful monuments in the way of defining and explaining rights, and of devising and enforcing remedies. The principles of the common law and of equity are very numerous, and they are peculiarly adapted to the necessities which sometimes occur in practice. It is to this vast collection of rules and principles that the court must now resort, in case the statute fails to furnish a proper rule or adequate relief. And, so long as the courts are at liberty to supply defects by resorting to those principles which were developed and applied by the judges and courts under the former practice, there will be no failure of justice for want of a good rule, and no want of symmetry and convenience in the course of legal proceedings.

Section 6. Abrogating or changing decisions. No court can disregard or nullify a statute, if it is constitutional, and is capable of being carried into effect. The court is bound to obey such a