1st. To provide for the abolition of the forms of action and pleading.

2ndly. To make the course of proceeding uniform in all cases, whether of legal or equitable cognizance.

3rdly. To abolish all forms and proceedings not necessary to ascertain or preserve the right of the parties.-A legal scheme of unparalleled boldness, being in fact an entire revolution in their law, and which could not be carried out without going to the very roots of the old procedure, without a new growth from the very beginning. A more difficult or important task has rarely been undertaken, and it would hardly have been matter of surprise if the commissioners had refused to grapple with it; they however probably felt with Ausonius, that modesty forbade them to plead inability for a task to which Cæsar had thought them equal.

"Cur me posse negem, posse quod ille putat."

At the meeting before alluded to, Mr. Field began by inform ing his hearers that the courts of law in the State of New York were, previously to the new Code, modelled on those of Great Britain; that they, like us, had a chancellor and vice-chancellor, whose jurisdiction was the same as in England; also, a supreme court of common law, like the Queen's Bench, and a court. of appeal, answering to our House of Lords. When an appeal came from the Court of Chancery, the judges of the Supreme Court sat with the senate; when the appeal came from the Supreme Court, the judges of the Supreme Court sat in the senate. Thus they had two systems, one of common law, the other of equity, and suitors were bandied about between both until patience and purse were alike exhausted. They had also, like ourselves, different forms of actions at common law, which added to the difficulty and uncertainty of obtaining justice.

Feeling that this state of things was unnecessary and hard to be borne, a commission consisting of three persons was appointed in 1847; their first report was published and laid before the legislature in February, 1848, and on the 30th of December, 1849, the whole Code, both civil and criminal, was published, and became in the next session, with slight modifications, the law of the land. Let us pause here for a moment to pay a just tribute of admiration to men who accomplished, and it would hitherto appear with entire success, so great a labour in so short a time.

Having thus alluded to the previous state of the law, the appointment of the commission, and the instructions they received, Mr. Field proceeded to explain the changes effected by

the new Code; and we will now endeavour to introduce them to our readers as clearly as our limited space will allow, confining ourselves, in this article, to the Civil Code alone, recommending earnestly a study of the Code itself, which is in most parts very clearly and ably drawn up.

The act is entitled "An Act to simplify and abridge the Practice, Pleadings and Proceedings of the Courts of this State." The preamble states, "That whereas it is expedient that the present forms of actions and pleadings in cases at common law should be abolished; that the distinction between legal and equitable remedies should no longer continue, and that an uniform course of proceeding in all cases should be established;" Therefore,

"The people of the State of New York, represented in senate and assembly, do enact as follows:"

1st. Remedies in courts of justice are divided into 1. Actions.

2. Special proceedings.

An action is defined to be "an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence."

3rdly. Every other remedy is a special proceeding.

4thly. Actions are stated to be of two kinds, 1. Civil.

2. Criminal.

And a criminal action is prosecuted by the people of the State, as a party, against a person charged with a public offence, for the punishment thereof.

Every other is a civil action; and where the violation of a right admits of both a civil and criminal remedy, the right to prosecute the one is not merged in the other.

The act is divided into two parts. The first relates to the courts of justice and their jurisdiction, which we pass by as uninteresting to our readers. The second part relates to civil actions, and is distributed into fifteen titles.

The first of these titles is devoted to the forms of civil actions, and enacts,―

S. 69, "That 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 be denominated a civil action."

S. 70, " in such action the party complaining shall be known as the plaintiff, and the adverse party as the defendant."

And by s. 72, feigned issues are abolished, and instead thereof, in the cases where the power now exists to order feigned issues, or where 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 plainly the question of fact to be tried, and such order shall be the only authority necessary for a trial.

These sections, and those which follow, being peculiarly important, we have given them verbatim. The act next provides for the time within which actions must be commenced, and passes thence to the third title, "Parties to Civil Actions." It will be seen that, by the sections we have given above, the act abolishes the Court of Chancery as distinct from the Courts of Common Law, and creates one supreme tribunal to administer all the law of the land, whether at law or equity,-thus fulfilling the first part of the instructions given to the commissioners. By s. 111, the act enacts that—

"Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in s. 113.

"S. 112. In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off or other defence existing at the time of or before notice of the assignment; but this section shall not apply to a negotiable promissory note or bill of exchange, transferred in good faith and upon good consideration, before due.

"S. 113. An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the persons for whose benefit the suit is prosecuted.

"S. 114. When a married woman is a party, her husband may be joined with her, except that—

"1. When the action concerns her separate property, she may sue alone.

"2. When the action is between herself and her husband, she may sue or be sued alone.

"S. 115. When an infant is a party, he must appear by guardian, who may be appointed by the court in which the action is prosecuted, by a judge thereof, or a county judge.

"S. 116. The guardian shall be appointed as follows:

"1. When the infant is plaintiff, upon the petition of the infant, if he be of the age of fourteen years, or if under that age, upon the petition of some other party to the suit, or of a relative or friend of the infant.

"2. When the infant is defendant, upon petition of the infant, if he be of the age of fourteen years, and apply within twenty days after service of the summons. If he be under the age of fourteen years, or neglect to apply, then upon the petition of

any other party to the action, or of a relative or friend of the infant.

"S. 117. All persons having an interest in the subject of the action and in obtaining the relief demanded may be joined as plaintiffs, except as otherwise provided in this title.

"S. 118. Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination and settlement of the questions involved therein.

"S. 119. Of the parties to the action those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should have been joined as a plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.

"S. 120. Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may all or any of them be included in the same action, at the option of the plaintiff.

"S. 121. No action shall abate by the death, marriage or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of death, marriage or other disability of a party, the court, on motion at any time within one year thereafter, or afterwards on a supplemental complaint, may allow the action to be continued by or against his representatives or successor in interest. In case of any other transfer of interest, the action shall be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action.

"S. 122. The court may determine any controversy between parties before it when it can be done without prejudice to the rights of others or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court shall order them to be brought in."

We consider these sections clearly drawn, and calculated to meet any case; but as we have before said, we had rather that our readers should on that point be able to judge for themselves, and have therefore given them unmutilated.

The 4th and 5th titles treat of the place of trial of civil actions and the mode of commencing them. By s. 127, it is enacted, that "Civil actions in the courts of record of this State shall be commenced by the service of a summons;" then follow numerous sections relating to the contents of the summons, and in what cases the service must be personal and when not, as in the case of corporations, infants, persons of unsound mind, &c.; where

there are several defendants and part only served; publication when defendant cannot be found, &c.; and in the sixth title we come to the all-important subject of the pleadings, and in this case also we shall give them entire, as to abridge them truthfully is nearly impossible. A more striking contrast to our standard works on special pleading than these plain common sense rules present, it is impossible to imagine. The commissioners have gone to work with no niggardly hand, and have offered up on one funereal pyre, to the goddess of Reason, the laborious work of men who for centuries taxed their minds for the purpose of smothering all that was valuable in a system which, in the words of Lord Mansfield, "is founded in strong sense and the closest logic," which in its elements is almost faultless, but which has yet been refined upon, tortured and twisted until justice and sound legal principles are alike buried under a chaotic heap of quibbles and conflicting decisions. We will, however, as before, let the act speak for itself. The title is divided into six chapters relating to the

1. Plaint.

2. Demurrers.

3. Answer.

4. Reply.

5. General Rules of Pleading.

6. Mistakes in Pleading and Amendments.

"S. 140. All the forms of pleading heretofore existing inconsistent with the provisions of this act are abolished; and hereafter, the forms of pleading in civil actions in courts of record, and the rules by which the sufficiency of the pleadings is to be determined, are modified as prescribed by this act.

"S. 141. The first pleading on the part of the plaintiff is the complaint.

"S. 142. The complaint shall contain:

"1. The title of the cause, specifying the name of the court in which the action is brought, the name of the county in which the plaintiff desires the trial to be had, and the names of the parties to the action, plaintiff and defendant.

"2. A statement of the facts constituting the cause of action, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.

"3. A demand of the relief to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated.

“S. 143. The only pleading on the part of the defendant, is either a demurrer or an answer. It must be served within twenty days after the service of the copy of the complaint.