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and settled disputes between the king's debtors and the sheriff. In this capacity the justices took the name of the Court of Exchequer. Still appeals pressed heavily upon the King's Council, and Henry II, in 1180, divided this council into two branches, each with a definite jurisdiction. The higher branch, which became the noted King's Bench in 1268, was presided over by the king, when not in fact, it was in theory. The second branch was called the Common Pleas, for in it were heard all sorts of civil actions. The procedure in these courts was simple, yet adequate for the times. Compurgation, ordeal and wager of battle, with which we are not concerned, were all abolished as the courts and common law slowly and unitedly developed into a beautiful system which, as we shall see, became fraught with technical rules of practice.

Thus, after fully two hundred years of slow growth, William the Conqueror's ideas were realized. The Anglo-Saxon popular and franchise courts had been thoroughly supplanted by the three great English courts (1) the King's Bench, (2) the Exchequer, (3) the Common Pleas, all of which were, by a provision in Magna Charta, permanently established at Westminster Hall in 1224. For six hundred years these courts continued to administer the common law of England. Within these courts law developed from its rudimentary form into that system which has so adequately supplied the needs not only of England, but the early needs of that greatest of all nations, America. The growth was slow, but healthy and strong. The modes of seeking redress were, at an early day, meagre yet typical of the uncultured suitors who sought justice. It is the practice in these courts, which gradually became technical and failed to mete out justice, that we propose to briefly study and then place along beside it our reformed procedure.

field, in 1750-1775, the action of assumpsit had come to supplant that of debt. It was extended to cases in which the actual promise, not existing in facto, was supplied by a peculiar fiction. He who sought damages for breach of a specialty contract must choose the action of covenant. The action for trespass was permitted for injury to person or property. As business transactions rapidly grew and scores of cases arose, for which no proper action had been provided, an injured suitor often found himself without redress. To remedy this defect in procedure, the statute of 13 Edward I (1288) authorized the chancellor to permit new actions, whenever they were demanded, to grant redress to a complainant. These were called actions of trespass on the case, i. e., actions depending upon the circumstances. The action of replevin originally lay for the recovery of property taken by distress. In this State it became the only action for property wrongfully withheld. The action of trover, at first, lay for goods stolen, the finder having refused to deliver possession. Later it was extended to cover cases where damages only were claimed for property wrongfully taken and detained.

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These illustrations are but phases in the early development of procedure. For a few centuries the history of procedure is a history of the creation of various forms of action, originating from time to time to further the object and usefulness of those courts, whose formation we have noticed. forms of action, like the courts that permitted them, were of slow development. They grew most rapidly from the reign of Henry II (1154) to the reign of Henry III (1272), which was known as the golden age of forms. To weary ourselves with a detailed description of how these various forms of actions arose, and with what each dealt, would be a matter of history, with which we in our practical treatise are not particularly concerned. We only mention and note their existence and slow development, that we may later see through them the beauty and simplicity of our reformed procedure.

Under the common law all actions were divided and classified. At an early date the formal actions, so called because provided for and formed by common law were (1) real, (2) mixed and (3) personal 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.

Pollock and Maitland tersely describe the system, in speaking of the chancery out of which we have seen these writs come. "It constitutes every weapon of medieval warfare, from the two-handed sword to the poinard. The man who has a quarrel with his neighbor comes thither to choose his weapon. The choice is large; but he must remember that he will not be able to change weapons in the middle of the combat, and also that every weapon has its proper use and may be put to none other." At an early time, the English race has turned its eyes from the fascinating pages of Corpus Jures and made the grand experiment of the "formulary system," which for centuries buried justice beneath its mountain of technical and arbitrary rules, whose slow growth was conditioned upon and perturbed by political and social motives. Little did they think their writs would "run in the name or kingless commonwealths on the other shore of the Atlantic."

As the forms of action, and consequently the writs, increased, the relief granted became more technical. The courts, too, had fallen into the practice of closely following precedents. Through this chaotic confusion and labyrinth of "fiction," precedent and injustice, the suitor wended his way and sought redress of the king, who was free from the formalities and precedents which shackled the common law. The Earl of Nottingham, father of equity," chancellor in 1673, master and defender of law, aided by the extension of trade and the abolition of feudal tenures, thus laid the foundation for a court of chancery, upon which has grown the most perfect system of equity jurisprudence throughout Europe and America. This went a long way toward ameliorating and refining the harshness and injustice of the common-law practice. Slowly the common law followed in the trail of advance procedure, made by equity, which threw off the yoke of technicality, inflexibility and injustice.

formal. Form and not substance was the characteristic. In medieval times there was nothing left of justice in the sphere of practice. The value of general rules of practice, tempered by judicial authority, was yet to be learned. The God of Justice had become deaf to the entreaties of her suitors, unless they appealed to her in accordance with some revered form. Were it possible to justify the assertion that "law is a lie and all lawyers are liars" it was the common law practice.

The growth of common-law procedure was a natural evolution, passing through what Pomeroy calls three successive stages. First, use of fiction to evade arbitrary rules, with the appearance of preserving them. Second, the introduction of the equitable side of law, which tempered the harshness of the methods of procedure. Third, direct legislation, affecting changes in procedure. It was "the necessary growth and consequence of the gradual refinement of English jurisprudence through a succession of centuries." Rule after rule served to mystify and confuse the whole subject of procedure, which degenerated into a science of pedantic forms and of "endless technicality, trivial niceties, excessive refinement and prolixity." It expanded most during the fifteenth and succeeding centuries, under the stress of eager rivalry with equity. Austin says, "equity arose from the sulkiness and obstinacy of the common law courts, which refused to suit themselves to the changes in opinion and the circumstances of society." Yet equity which had early toned down the harshness of common law, had too, fallen into technical and formal ruts. Two systems of law, developed through centuries of turmoil, technical, inconsistent, full of fiction, tautology, trivial niceties and injustice continued, in our own modernly civilized day, until beneath the folds of their garment justice itself became smothered.

When George III ascended the throne, political 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 Bentham 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 on 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 Edward III (1327), from which time the science of pleading began to degenerate into arbitrary rules. The early simplicity was gone. "Trivial niceties

was not in vain. Catching his inspiration, Lord Brougham and Austin carried Bentham's reform forward. It takes a bold man with broad views and 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 belongs to, an American, a New Yorker, with keen and broad views, a strong energetic and practical turn of mind, who could and dared wend his way through the entanglement of procedure underbrush, out into the clear, open and plain field of adjective law.

oiled by the same elementary rules in every kind of action. Its beautiful simplicity of form, a principle which must lie at the foundation of the whole system of any practical remedial law, is its attractive feature. The plain and concise statement of the 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, was duly appointed. Accordingly, on February 29, 1848, Mr. Field reported complete a Code of Civil Procedure, containing only 391 sections. This became the New York Code of Civil Procedure, a model whose influence has spread across the water and has been substantially the foundation of the practice for the bulk of the English-speaking people. It has been followed by fully one-half the States of our Union. This original Code, together with the Penal Code and Code of Criminal Procedure, framed by Mr. Field and adopted by the legislature in 1881, form a lasting monument to his memory.

We have but mentioned the slow development of procedure, starting from its ancient, crude and unjust methods and passing through the stages we have suggested. Lest we might be guilty of prolixity, briefly have we noticed the practical working of common-law practice. Let us naturally turn and note the distinctive features of this, our reformed procedure, in contradistinction to that system we have been studying. Let us see if there be anything in the way of its further development for practical use; if so wherein lies the defect, and how shall we devise a remedy.

The distinctive features of our reformed procedure, its purpose and object, were most clearly stated by its author at the time of its adoption, as "the demolition of the forms of action, abolition in that respect of the distinction between actions at law and suits in equity, and the substitution of one form of action for the enforcement of private rights and the redress and prevention of private wrongs, in which action should be determined all the rights of the parties, legal and equitable, with respect to the subject in litigation." The "Civil Action" created is the one action to settle all disputes and controversies arising between private suitors. Under the common law, "The client was unthought of * * The right was nothing; the mode of stating, everything." Such a system of remedial law has gone to rest and now, necessary to understand procedure as it is, it has fallen from its place of first importance and has become equal, yea of secondary importance to one's rights. This improved machinery, permit me

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and establishing uniformity of action, nothing so marks the advance in procedure as the literal allowance of amendments, and interpretation of the complaint. The principle couched in section 723 of our Code, is beautifully expressed in the words of Judge Andrews in 83 N. Y. 14. When speaking of a complaint, he said, It will be deemed to allege what can, by reasonable and fair intendment, be inferred from the allegations." This disposition to deal liberally with amendments has smothered much of the asperity of practice.

In our commendation of this innovation in methods of procedure, we must not be led so far as to overlook the defects existing in the system, whose simplicity and uniformity, in contradistinction to the abstruse, technical and formal common law practice, is its strong characteristic. There are many welldeserved objections to our Code practice and the way by which the rules are revised and amended. The Code of to-day, as encumbered with "unnecessary verbiage, diffuse statements, unscientific and illogical arrangement." is not the work of the master, who denounced it as an “example of what a Code ought not to be." It violates the bed-rock principle of a Code of Civil Procedure, simplicity. It has tended in later years to check the reform in many States and set the pendulum swinging backward toward common-law practice.

The present New York Code of Civil Procedure bears but slight resemblance to that of its predecessor. In 1870, by legislative enactment, a committee of three, the head of which was Montgomery Throop, was appointed to revise the statutes of 1828. Instead of carrying out the work for which they were appointed, they revised the Code of 1848, which had been in use about twenty-two years. With the reason for this interference we are not here concerned. We are with the result. Every practitioner upon whom the subject is daily forced, is fully acquainted with the unnecessary and cumbersome bulk of our Code. Its many complications and vicious phraseology; its commingling of adjective and substantive law; its violation of all rules of systematic arrangement, all of these, too well known to a New York lawyer, have defeated the ends of

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sary to orderly and convenient practice." Second, because of the attempt to provide for individual cases, by the frequent adoption of new sections and parts of sections. In the words of Chief Judge Parker, of the Court of Appeals: "Certain it is that we will not get any Code that is satisfactory to anybody so long as each individual member of the legislature finds it necessary to have passed two or three separate amendments to relieve constituents who are embarrassed by present litigation." Third, because it has been and is necessarily brought about by legislative action, adopting rules without consideration, thus requiring for their interpretation, judicial decisions and subsequent amendments. This greatest of evils, in the way of our Code's further development for practical use, is illustrated by the large number of amendments since its adoption.

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I, with but a glimpse of actual practice, need not illustrate these many and recognized defects, by pointing out particular sections in our Code. What I say is based upon slight experience, careful study and observation and diligent inquiry. Mr. Field, in denouncing the adoption of the present Code of Procedure, predicted its inefficiency because of its impracticableness and bulk. That these objections are fully realized by the profession, burdened with such cumbersome and conflicting rules, upon which has grown a mass of precedents and decisions, is clearly shown from the recently expressed opinions 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. 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 come sooner 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 with some 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 or per-system is not at fault. The defect lies in the subpetuating the system.

Our reformed procedure has arrived at this generally recognized and much lamented stage of development, first because it has attempted to define the rights of parties with great particularity and detail. It is not comprehensive but minute. It strives to cover every possible condition which may arise. This is impractical and impossible. It violates the principles of simplicity, adaptability and practicability. This difficulty has been clearly avoided in the practice acts of Maine, Massachusetts and Connecticut. These acts "embody in a clear and concise manner the rules and regulations neces

stance and form of this system. In the manner of maintaining, improving and perfecting our reformed procedure, it has degenerated into a glaringly and flagrantly inconsistent and defective system, in which lies concealed the germ of modern procedure.

Marred with so many defects and fettered with numerous disadvantages, there scems to be something in the system which commends itself to the administration of justice. Should we discard entirely the system because of its defects which go only to the substance and mode of revising or rather cling to that system, in which is every element of simplicity, justice, expediency and practicableness,

and seek to tear out, root and branch, the defects and render the system "convenient alike to lawyer and suitor?"

front ranks of the world, in her system of procedure. Since '93, the New York Bar Association has been persistent in its demands for a real revision of the Code. This agitation has come from men thoroughly competent for the work, by reason of wide legal experience and a thorough study of systems of procedure in vogue elsewhere.

Not yet has this development of procedure reached its goal. We must either rise or fall. Evolution does not cease, until the perfect state. And when our conflicting, incongruous and illy-adapted procedure shall have been reduced to simple, clear and concise rules of practice; when these rules shall have come to take their origin from that source which shall give them permanency; when in the fullness of time, our reformed procedure shall have achieved its full stature, then shall the profession have come out from its wilderness of rules and decisions, and basking in the sunlight of a simple, just, elastic, yet permanent procedure, be freed from the unjust criticism of the world.

ALBANY, N. Y., 1902.

STEPHEN S. READ.

SHOULD EXPERT WITNESSES BE

While the procedure of New York has floated along into a degenerated condition, inadequate for present purposes, our English brethren who took their inspiration from the Field Code, have gone a long way toward solving the difficulty. By an act of Parliament passed in 1873, the Supreme Court of Judicature was created. The act, containing about 200 sections, provided for the organization of the courts and defined their powers and duties. It clothed the courts with power of making rules for the purpose of carrying out those provisions, which were deemed proper and desirable methods of practice. Embued with this power the courts accordingly adopted about 1,000 sections. Thus was completed a simple system of remedial justice. Speaking of this system, Lord Chancellor Cairns is reported to have said: "There has been found in their workings a degree of philosophy, of simplicity, of uniformality and of economy of judicial time, which has secured the best results." Lord Chief Justice Cockburn 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 number of objections hurled at our code of remedial law, enacted and modified from year to year by legislative action. May not New York profit by their example? May we not have our Code of Civil Procedure torn up root and branch and revised that we may again get in touch with the industrial interests of our land? May we not have the rules of courts collated and all statutes relative to procedure, reduced to rules and united and condensed into a perfect system of procedure? May not the legal profession, composed of the best trained minds, thoroughly acquainted with the rules necessary for practice, frame and adopt in the first instance these rules? Then may they not go to the legislature for final 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 meaning and application, the young practitioner feels the need of reform but faintly in comparison with those who are well acquainted with present practice. It is a sad thought that our own State, leader and pioneer in reformed procedure, should have degenerated into such a codical wilderness. But from the present consensus of opinion, and concerted action of the New York State Bar Association, it looks as though our statutory procedure would be wiped out and supplanted by a simple system of rules. Then would New York again stand in the

"RETAINED"?

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It is customary for lawyers, when engaging the services of expert witnesses to offer to retain " them. And lawyers speak of the fees paid experts for preliminary work as "retainers."

I believe this use of the word retainer to be wrong, and I do not think it proper for any expert witness to allow himself to be retained.

The mere payment of a fee for preliminary work and report should not be considered as the purchase price to silence the witness-and this is what a retainer" paid to a witness would do and nothing else.

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Severing my connection with this side of the case doesn't mean that I start to form (directly or indirectly) a connection with the other side; but it does mean that should the opposite side approach me that I feel at liberty, and with a clear conscience. to serve them.

Most lawyers agree that this is the proper course to pursue, but a minority do not think it is. The minority lawyer is so bound up in his own customs

and for so many years has been retained himself. and has retained others, that he cannot understand why the mere payment of money to an expert does

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