tion of errors was established, familiarly known as the "Court of Errors," which continued down to the adoption of the Constitution of 1846. The first act relating to procedure after the organization of the State government was passed on the 16th of March 1778. It regulated the jurisdic tion, powers and terms of the courts, and the return of process. In 1780 a new justices' court act was passed, increasing the jurisdiction to one hundred pounds, and providing for a summons returnable not less than six nor more than twelve days from the date of service, and to be served six days before the return, which is the present rule. constable was required to selec: the jury. This is The the earliest statute we have found, either in the State or Colony, giving the constable power to select the jury; but it was probably the regular practice. The germ of the practice may perhaps be found in the provision in the "Duke's Laws" for arbitrators, to be chosen by the constable. We did not outgrow this custom until 1889. The forms of the oaths to jurors, and also to witnesses, are prescribed by the Act of 1780, and they are still retained in our practice. In ordinary cases an execution could not be issued until thirty days after judgment, and the constable was required to levy after twenty and within thirty days. This act also makes provision for cases involving the title to land, the amount of costs to be taxed in particular cases, and the fees allowed in ordinary matters in justices' courts. The justices' court statutes of today are very largely based upon this Act of 1780. There was a general revision of the statutes relating to costs in 1787, limiting the right to costs and making the amount dependent upon the recovery, substantially according to the present rule. Trial by battle was abolished in 1786, and practice in the Grand Assize" was regulated. This was a method of trial of title to land instituted by Henry II, in the latter half of the twelfth century, and the tenacity of English institutions is illustrated by its continuance as part of our legal system until it was formally repealed in 1828. although it had long since fallen into disuse. The wager of law was abolished in 1787. A general statute of limitations was passed in 1788, and while the limitations in particular cases have been somewhat varied since then, the general scheme of limitations of actions in our present law is substantially the same as in the early statute. The early history of the State shows an exceedingly fragmentary condition of legislation relative to procedure. There was no attempt at codification, but subjects were treated by the legislature from time to time as occasion arose, and the uncertain, unsatisfactory and experimental character of the legislation is shown by the fact that some of the most important laws were limited in their duration. They were only enacted for a specified time, and quite often were amended before the time elapsed. Terms of court were fixed by act of the legislature, and frequently by the Governor's proclamation. It was a period of paternalism in legislation, and almost every subject of public or private interest received the attention of the legislature, and it is not surprising that judicial procedure did not take any definite shape. The courts were still continued upon English and Dutch models, and the procedure was largely of an inherited character. From the organization of the State in 1777 to the year 1800, inclusive, there were 78 general statutes relating to practice; in 1801 there were 37 of the same character. The Legislature of 1801 evidently appreciated the necessity of reform, for an act was passed, chapter 99, " for the amendment of the law, and the better advancement of justice." It regulated the admission of evidence under the general issue; provided for the compulsory reference of long accounts; the taxation of costs; the entry of judgment by the clerk upon default; provided for a joint or several action upon a joint and several liability; for judgment against joint debtors where some were not served; prevented the abatement of actions upon the death of one or more parties, if the cause of action survived; provided for the appointment of deputy county clerks; fixed the fees of witnesses in courts of record, and contained regulations concerning several other minor matters. The same legislature revised the laws concerning costs in the Supreme Court; fixing the right to costs to recoveries of $50 or more, which limitation has been continued since that time. The fee bill was also revised by the same legislature. From 1802 to 1812, inclusive, there were 33 There was a revision of general practice acts. In 1813 there was a general revision of the law, and the subject of practice was embraced in 26 statutes. special subjects, but no general codification. It is evident that the revisers began to appreciate the importance of arrangement and classification, for each court is treated in a separate act embracing the general provisions relating to procedure therein. There were several other general acts relating to particular subjects of practice, such as pleadings, judgments and executions. The "Law Amendment Act" of 1801 was revised, extended and re-enacted in 1813, together with the general fee bill. were also statutes regulating actions upon particular subjects, like mortgage foreclosure, partition, dower, divorce, waste, and others, which are the basis of various portions of chapters 14 and 15 of the present code of civil procedure. There Reform in procedure was materially limited by the provision in the first Constitution, prohibiting the legislature from instituting any new court "bu such as shall proceed according to the course of the common law," which practically imposed the common law procedure upon any new tribunals which might be created. From 1814 to 1827, inclusive, there were 47 general practice acts, and in 1827 and 1828 the revised statutes were adopted. Part III., The revisers of 1828 undertook to collect and place in one act the various provisions relating to practice in all the courts, which provisions form Part III. of the Revised Statutes, in a chapter entitled, "An act concerning the courts and ministers of justice, and proceedings in civil cases," with a preamble stating the importance of consolidating, arranging and simplifying proceedings. relating to practice, contains 2,547 sections, and the revisers say, in a preliminary note, that they have followed the general plan laid down by Mr. Tidd in his treatise on practice, of whom they say that "a higher authority and a safer guide could not be found in the whole range of English and American writers." The deviations from Mr. Tidd's plan are necessary, the revisers say, in consequence of the difference between English and American forms of government, and our peculiar circumstances and institutions; and that the attempt which our courts had made to adapt the English forms of procedure to our own practice had not been successful in many cases, because of the differences already noted, and also because the courts did not possess the necessary power. This part of the Revised Statutes constitutes our first code of civil procedure. The revisers did not call it a code, but it was as much entitled to this name as any code which has been enacted since. It embraced nearly all of the practice in all the courts. The great lawyers who prepared the Revised Statutes of 1828 were the pioneers in code reform in this State, and their work has been the basis of subsequent code revision. Later code compilers have borrowed freely from them, and have closely followed their general plan and classification. No one can compare either the code of 1848, or the present code, with the revision of 1828, without observing a great similarity in arrangement and general style. The re by constitutional amendment, has been copied into our codes of civil procedure. It is not too much to say that the Institutes of Justinian exhibit no higher evidence of genius than the Revised Statutes of 1828. From 1828 to 1848 there were 72 general practice acts. In the latter year the "Code of Procedure" was adopted. David Dudley Field began writing on law reform as early as 1839, and two bills prepared by him were introduced in the legislature of 1842, one containing 50 sections, seeking to simplify the administration of justice in the courts of common law, and another relating to practice in courts of equity. The "Common Law" bill provided that the first proceeding should be a complaint, filed with the clerk of the court, setting forth the nature and particulars of the cause of action, which was to be verified by the plaintiff or his attorney. Upon the flling of this complaint, a summons was to be issued by the clerk, indorsed by the plaintiff's attorney, requiring the defendant to appear in person, or by attorney, upon a day therein fixed, and to answer the complaint. The proposed bill abolished all forms of action and all forms of pleading, and undertook to provide a simple procedure. The bill is quite limited in its scope, and shows that Mr. Field was not yet emancipated from the traditions of the common law. This is shown by several provisions in the proposed bill, which were not included in the code submitted and adopted six years later; and it is noticeable that in this bill he proposed to commence an action by the filing of a verified complaint, a copy of which should be served with the summons. By this suggestion he revived the provision of the Duke's Laws" of 1665, which required a declaration to be filed before process was issued. The judiciary committee of the assembly declined to approve Mr. Field's bill, but offered one prepared by itself, containing 28 sections, and based largely upon the scheme proposed by him. Neither of these bills was passed. Mr. Field continued his labors and was subsequently the chairman of a commission which produced the "Code of Procedure, containing 391 sections, adopted in 1848. These commissioners, in their report to the legislaA very large part of our present civil procedure ture of 1849, say that they have undertaken the task had its origin in the practice act of 1828. of making the first code of practice ever made in a visers wrote without any guide or model, but pre-country holding the common law of England, and pared a code which for nearly seventy years has been the basis of all our civil procedure. While pursuing common law remedies, and adhering to common law forms and practice to a large extent, the revisers nevertheless prepared a scheme of practice, and a classification of procedure, which have not since been materially improved; but a very large part of their work, modified by the changes in the structure of judicial tribunals, accomplished supplanting by a new work of their own creation, the heterogeneous mass styled practice, which had been accumulating for ages. Without detracting in the slightest degree from the value of the important work accomplished in law reform by this commission, we think they failed to give proper credit to the revisers of 1828, from whose work they freely borrowed. Mr. Field says that under the Revised Statutes there were ten different forms of action, each with and the responses to our circular show a very strong its peculiar technical language. The distinguishing preponderance of sentiment in favor of a general features of the Code of Procedure were the aboli-revision. While some persons object to a revison, tion, so far as possible, of the distinction between actions at law and actions in equity; the abolition of existing forms of pleading, and the general simplification of legal proceedings. These reforms were sufficient to justify the code, but in numerous matters of arrangement, classification and detail, its authors were close imitators of their predecessors who framed the earlier revision. In 1849 there were 190 amendments to the code of procedure, and 82 new sections were added, and from that time to 1876 there were 361 amendments, making 551 in all, from its adoption in 1848 to 1876, when the Code of Civil Procedure was adopted; and during the same period there were 182 general practice acts. Thirteen chapters of the Code of Civil Procedure were enacted in 1876, 9 in 1880, and one relating to condemnation proceedings in 1890. Including the sections added and repealed, there have been 1,323 amendments to the Code of Civil Procedure, and during the same period there have been 92 general statutes relating to practice. According to our computation, this makes a total of nearly 2,500 statutes and code amendments, besides hundreds of special, local and temporary acts, since the organization of the State government. This great mass of legislation shows an incessant, and sometimes even painful struggle to attain an unattainable perfection in procedure. Law, almost equally with medicine, is an experimental science, and perfection is scarcely to be expected. Laws rapidly become obsolete, and the approved legislation of yesterday is the text of law reform today, and will be a legal curiosity to-morrow. While law may be theoretically "the perfection of human reason," it quite often fails to work out perfection in human experience. Cicero lavished extravagant praises upon the Twelve Tables, but even in his day they had been seriously modified by the energy and growth of a powerfml commonwealth. Sir James Stephen says that frequent revisions of a code are indispensable to keep it in efficient working order, and these revisions must be made until men are able to construct a perfect legal system. The shifting and fluctuating necessities of human society make it impossible, even if desirable, for statutes to assume a fixed condition. Satisfaction means stagnation, and a system of procedure calculated for the every-day use of a complex civilization, must be sufficiently elastic to permit its application to new and constantly varying conditions. WHAT SHALL BE DONE WITH Our Code of CiVIL PROCEDURE ? This is a serious question. That our civil procedure ought to be revised, nearly every body admits; it is quite evident that the objection is made upon grounds of convenience, and to avoid the uncertainty in practice which might be created by a new code; and not because our present procedure is believed to be as systematic and convenient as it could be made. We appreciate the objections of those who deprecate the unsettling of practice, and we are unwilling to recommend any revision which will have that effect to any considerable extent; but the history of the development of civil procedure in this State shows that the time has arrived when it will be convenient and for the public interest to undertake a rearrangement, a more thorough classification, and a revision of our entire civil procedure. We have already noted the first revision of the procedure in 1828; a partial revison accomplished by the code of 1848; another partial revision by the Code of Civil Procedure of 1876 and 1880, and the numerous practice acts, additions and amendments to the code which have been the subject of constant legislative attention; and now that the general statutes of the State are being revised, we think it is a proper time to also revise the civil procedure, so that the entire scheme of revision may be made harmonious and symmetrical. It will be difficult to complete a reasonable scheme of statuory revision without also revising our system of procedure, for the reason that some fifty subjects involving practice either directly or remotely, are now scattered through the laws, and there is no appropriate place for them outside of a code, because of their heterogeneous character, which prevents any considerable combination and classification. The amendments to the code itself have been of such a fragmentary, unsystematic and piecemeal character, that, instead of a simple code, we have a complicated and inconsistent system of practice, which is the almost inevitable result of our method of code construction. Many suggestions concerning revision have been made to us by eminent judges and members of the bar, which will be fully considered before the result of our work is finally submitted. These suggestions show a great diversity of opinion as to the nature and office of a code. Some lawyers are in favor of a radical revision, recommending that it be assimilated to the English, German or French practice. Some suggest that the code of procedure should only embody a few general provisions, that the judges should be clothed with power in convention to make rules governing all matters of detail; that such rules should be subject to revision at stated periods, and also at such other times as circumstances may seem to demand. Others think that the code should contain all matters of detail. It is also suggested that all actions and proceedings in all courts be commenced by the service of a summons, and especially that proceedings in surrogates' courts should be substantially the same as in the Supreme Court; that there should be separate surrogates' and justices' court codes, and that the organization and jurisdiction of the courts, and miscellaneous and special provisions, should be included in general statutes. Some lawyers suggest that all the rules of evidence should be embodied in the code, while others think that the rules of evidence now in the code should be eliminated therefrom, and placed in a separate code, to be called the code of evidence." Numerous suggestions have been made in favor of shortening the time for service of process and papers. It is also suggested that the code of 1848 should be restored as it stood at the time of the adoption of the code of civil procedure in 1876. We have also received a large number of suggestions relating to matters of detail, affecting specific subjects of procedure and sections of the code, which will receive attention when the matter of actual revision is reached. We have already considered, as fully as time and circumstances would permit, the suggestions of a general character which might aid us in formulating the recommendations which we have concluded to submit. In the responses to our circular, we note a very general desire for permanency in our procedure, and the emphatic opinion that the code is too frequently amended and the practice thereby kept in an unsettled condition. While it is quite apparent that amendments are frequently made to meet the exigencies of particular cases, it is nevertheless true that a large number of the amendments are the result of a sincere desire to perfect the scheme of procedure, by correcting errors and omissions whose existence is developed by experience. It has already been noted that the code of 1848 was frequently amended, and this was quite often done at the suggestion of its author. The number of amendments to that code was greater in the aggregate than the whole number of sections, and several sections were frequently amended, while others remained untouched; 190 amendments were made and 82 new sections added in 1849, and the entire code was re-enacted. After that time there were 361 amendments. But 210 sections, or nearly half the entire number, were not amended at all; and in this number were included very many of the most important subjects, embracing the ordinary and more substantial features of procedure. This shows a reasonable permanency in practice, within the somewhat narrow limits of the code. eral revision. The first 13 chapters of the code were enacted in 1876, and went into operation May 1, 1877. The legislature of 1877 made numerous amendments, some of a verbal, others of a substantial character, which took effect September 1, 1877. Excluding the provisions specially relating to the counties of New York and Kings, there were originally in this part of the code 1,050 sections. Of this number 657 remain unchanged. Of the sections amended in 1877, 156 have not been amended since, and the amendments of that year may be considered as practically a part of the original code. Adding the 156 sections to the 657 which have not been changed at all. we have 813 sections which have not been changed since 1877. By chapter 542 of 1879, 78 sections were amended. Since that time, and up to and including 1894, only 100 sections, and including 1895, 149 sections have been amended. There were 66 amendments in 1895, but a large number of these were formal, and made necessary by the new constitution. Twentynine sections have been repealed, leaving 1,021 still in. force. It thus appears that for 16 years the "business" part of the code has remained substantially unchanged. It has received extended judicial construction, and the practice provided by it has become tolerably well understood and quite firmly established. Whether this part of the code should now be re-written is a question which should be carefully considered. An attempt to re-state and re-write its provisions will almost necessarily result in changes in form, expression and substance that would require judicial construction, and the practice would remain unsettled for many years. Changes may be justified which simply reduce the bulk of the code, and simplify its provisions without changing its substance or prescribing rules of practice vitally different from those now in force. While absolute philosophical accuracy is desirable, and should be attempted, in original statutes, it may be doubted whether an attempt at such accuracy should now be made at the possible expense of the stability and certainty of the law; and unless extensive reforms are to be introduced, a revision should probably be confined to such changes as may tend to perspicuity, without unsettling established practice. Such a revision could be attempted after a new classification and a re-arrangement of the code has been accomplished. For the purpose of harmonizing and simplifying the practice, many provisions can probably be eliminated. but great care should be used in this procsss of excision, lest matters of substance be sacrificed t mere brevity. An examination of that part of the code of civil procedure relating to the practice in ordinary In our work as Commissioners of Statutory Reactions in courts of record, included in chapters 4 vision we find a large number of statutes relating to 13 inclusive, reveals a condition of the law which to practice, which properly belong in a complete should make us pause before recommending a gen- | code of civil procedure. Some of them are inde pendent provisions, and some are fragments of subjects already partially included in the code. The plan of revision which we recommend will permit the incorporation and classification of all of these subjects in the code, where we think they should be retained. If the legislature, in enacting laws upon new subjects involving procedure, will place them in the code, the symmetry of the system which we suggest may be preserved, and the annoyance resulting from scattered legislation relating to pro cedure will be avoided. While some of these subjects are of less importance than others, they all, we think, should be classified in some scheme of procedure, and the plan of dividing the code into parts will permit such classification. We find the following subjects now embraced in general statutes which we think should be included in the code: Prohibiting jail liberties on executions for trespass on public lands. Judgments to be in dollars and cents. Insolvent debtors, including general assignments. Actions for detention of canal boats. Receivers. Drainage. Actions by State. Liens on monuments. Care and custody of estates of persons sentenced to imprisonment for life. Salary of crier and messenger in the court of appeals. Actions to acquire title to real property. Evidence of surveyors. Compensation of justices assigned to hold court in the second judicial district. Stenographers in certain counties. Civil procedure may be classified under four general heads, namely, the commencement of the suit, the trial, the judgment, and the execution. If an appeal is provided, it is a mere adjunct, and not a necessary part of the system. The tribunal, the limitations of time for various proceedings, provisional remedies, and the differences in actions incident to the various subjects, are matters of detail, and are subsidiary to the principal problem of proadminis-viding adequate machinery for the redress of private grievances. Whether there shall be an appeal is a matter of state favor, and not of abstract right. An appeal is a confession of weakness in the system, and an admission of defective administration in the tribunal of first instance. Most judicial systems, but not all, provide an appeal, or a rehearing, or a new trial in some form; in most cases, by an appeal to a higher tribunal; in others the defeated suitor is permitted to bring an action against the judge or magistrate for "falsifying justice," in which the merits of the original controversy are again considered. But an appeal is an admission that perfection of human judgment or of human conduct cannot fairly be expected, that the mistakes which must almost necessarily occur should Exemption of cemetery lands from execution. Corporations not to plead usury. Discharge of mortgages of record. Exemption from execution of stock of homestead be corrected, and that suitors should not be com company. Liens of railroad employes. Compensation of county judges holding courts in other counties. pelled to submit to the consequences of error by the witnesses, or by the tribunal, or its officers, provided by the State to assist in the administration of justice. Whether there shall be one appeal or more, and how the controversy shall be again heard or reviewed, is also a matter of agreement or expediency. In this State, in some cases, there is only one review, and in others, like an appeal from justices' of court, the controversy may be heard or reviewed four times. Evidence of existence of foreign corporations. appeals. Verification of pleadings in justices' courts. Relief of sureties and trustees. Evidence as to age of children. Proof of written instruments. Board of claims. In the early judicial systems there seems to have been no appeal or review provided, because in many instances the King himself was the judge, and there could be no higher authority to which an appeal could be made; but as legal systems developed, and Taxpayers' application for discharge of judgment legal forms and the administration of justice became debtor from imprisonment. Powers of surrogates. Proof of payment by or to municipal corporations. more crystallized, and the redress of grievances, or the application of remedies, was distributed among different tribunals, it was found that a satisfactory administration required a central tribunal, with |