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ant circumstances, and above all, the evil aimed at and the remedy intended to be applied, it is equally well settled that a more stringent rule is applicable to a certain class of statutes -namely, to those of a penal nature, and those which are, as it is termed, in derogation of the common law. Within this latter category, have been classed, statutes prescribing the practice of the courts; in respect to which it was remarked by the supreme court, in Jackson v. Wiseburn, 5 Wend. 137, that "the rules and practice of the court, being established by the court, may be made to yield to circumstances to promote the ends of justice. Not so, as to a statute; it is unbending, requiring implicit obedience as well from the court as from its suitors."
Without stopping to inquire how far this principle is applicable to statutory provisions, prescribing, for example, the time within which a particular act must be done, (which was the case in the instance referred to,) the Commissioners suppose that it does not apply in all its severity to a system of regulation, having in view, as its sole object, the furtherance of justice and a disregard of technical strictness. This is the great principle, running through all the provisions which the Commissioners have hitherto reported, and which marks the complete code they have now the honor to report. Regarding the code in this light, not merely from its general spirit, as deducible from all its provisions, but from express declarations to this effect throughout, they had supposed that the courts would have felt themselves bound to apply to it a liberal construction, according to its spirit and objects. While many of the judges have done so, others have taken a different view. By them the severe test above referred to has been applied, and the code has been considered an inflexible statutory rule, admitting of but little, if any, relaxation in furtherance of the great object for which it was designed.
Of the many instances of this nature, to be found in the reports of decisions upon the code, a case recently decided in New-York, illustrates these remarks. The action was on a promissory note, of which the plaintiffs were the endorsers, and the defendants the makers. The complaint alleged
"that the defendants made their promissory note in writing, bearing date on a day mentioned, by which they promised to pay to S. K. Saxton or bearer, eighteen months after date, six hundred dollars; that the plaintiffs are now the lawful holders of said note, and there is now due thereon six hundred dollars and interest." This complaint was demurred to, on the ground" that it did not state facts sufficient to constitute a cause of action, in that it does not state that the note therein mentioned, had been assigned or transferred to the plaintiffs, or that they were the owners thereof." On a motion to set aside the demurrer as frivolous, the judge, in denying the motion, remarked: "It is the duty of the plaintiff, to show a prima facie cause of action; and to do this, he must show he is the party in interest; in such a case as this, that he is the "owner" of the note, the subject of the action. I do not think he has done this, for I am not prepared to say that the words "lawful holder" impart "ownership." I do not think the defendant was bound to raise the question of ownership, by answer; the plaintiff must allege an interest. I cannot say that this demurrer is frivolous, and I shall therefore deny this motion," Beach v. Gallup, 2 Code Rep. 66.
If this be a sound interpretation of the rules of pleading as prescribed by the code, the Commissioners are obliged to admit, that they have entirely failed of the object they had in view, in the section which provides, that the complaint must contain, among other things, "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 ;" Amended code, sec. 142, subd. 2; and in the general rule of pleading, that," in the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties." Ibid. sec. 159.
Another case, in which the application of the ancient strictness in the construction of statutes, has resulted in embarrassing the practice under the Code, is reported in reference to the provision which declares, that "the report of the
referees upon the whole issue shall stand as the judgment of the court; and judgment may be entered thereon in the same manner as if the action had been tried by the court." Amended code, sec. 272. A reference of the whole issue, as defined in sec. 272, means where the referees are "directed to hear and decide the whole issue ;" and a trial by the court is, as defined in previous provisions, a trial by a single judge, without a jury. The plain sense of the provision as to a judgment, as intended by the Commissioners, and as they supposed they had distinctly presented in terms, is that this judgment, where the whole issue is decided by the referees, is to be entered precisely as upon a trial by the court.
And yet, out of this provision, a variety of interpretation has arisen. In Clark v. Andrews, 1 Code Rep. 4, it is reported to have been decided, that judgment cannot be entered until the report has been confirmed at a special term. This case arose under the similar provision of sec. 5, of the supplementary act, that "the report of the referee or referees upon the whole cause, or upon the whole of any issue therein, shall stand as the decision of the court, in the same manner as if the cause or issue had been determined by the court at a special term, and may be reviewed in like manner."
In Doke v. Peck, 1 Code Rep. 54, a report had been made, finding a certain sum due to the plaintiff. On a motion to set it aside, on the ground, among others, that it was irregular in not setting out the facts proved before the referee, the judge, after remarking that "it is exceedingly difficult to ascertain from the Code, what is the practice in such a case as the present," ordered that the report be set aside, and that the referee make a new one, on the ground that the referee must set out the facts proved by the evidence, and the conclusions of law upon them.
In the case of Renouil v. Harris, 1 Code Rep. 125, however, the New-York Superior Court, followed the true meaning of the Code, in this respect; and held, in accordance with the views of the Commissioners, that a party in whose favor a referee reports, may thereupon enter up judgment, without any further notice to the adverse party, than the notice of adjusting the costs; and that it is not
necessary that he should obtain the assent of the judge to enter up judgment.
Again. Under the provision of the code of 1848, sec. 2, which defined an action to be "a regular judicial proceeding, in 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," different constructions have been given upon the question whether an action can be commenced for the partition of lands. Independently of the fact, that an action for the partition of lands is expressly mentioned in several portions of the code, the Commissioners, after a very careful consideration of this definition, supposed that it was clearly comprehended within its terms. In accordance with this view, it was held by Mr. Justice Harris, in Backus v. Stilwell, 3 Howard's Pr. Rep., 318, to be clear that such an action was maintainable. A contrary opinion, however, founded upon a critical examination of the language of the code, was strongly expressed by Mr. Justice Barculo, in Traver v. Traver, 3 Howard's Pr. Rep., 351-357; which, it is stated, in a subsequent part of the same volume p. 368, was unanimously affirmed, Mr. Justice M'Coun delivering the opinion of affirmance.
The provisions as to amendments, also, which were designed by the Commissioners, to extend the power of the court, for this purpose, to every conceivable case, in furtherance of justice, have been the subject of different interpretations. The provision more especially referred to, is that contained in section 149, of the code of 1848, and is as follows:—
"The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceeding, by adding or striking out the name of any party, or a mistake in any other respect, or by inserting other allegations, material to the case, or by conforming the pleading or proceeding to the facts proved, whenever the amendment shall not change substantially the cause of action or defence."
In the case of Spalding v. Spalding, 3 Howard's Pr. Rep., 297, the facts, as set out in the complaint, constituted a cau s of action, either in trespass or replevin under the old practice, and prayed for damages instead of the possession or return of
the property. An amendment of the prayer, in this respect, was held inadmissible. In Dows v. Green, 3 Howard's Pr. Rep., 377, however, Mr. Justice Parker took a different view of the question; holding, that it being in furtherance of justice, the court had the power, under the section referred to, to allow an amendment of the complaint, by altering the prayer for relief contained in it, so as to claim the property itself, and damages for its detention, it being originally for the value of the property only; and that, although the amendment would change the form of the action, or rather, the class to which it belonged, it did not change the cause of action in the sense in which those terms are used in this section.
Other instances might be adduced, if it were necessary, of similar differences of construction. Enough, however, has been presented, to show that the application of the strict rule in this respect, applicable to statutes generally, cannot but be productive of great injustice, when made to a system, whose chief design and whose great merit, if it have any, is its attempt to make the attainment of justice the paramount object, and the use of forms mere auxiliaries, which, when they come. in conflict with the ends of justice, are to be relaxed. A careful examination of the cases already referred to, will show, moreover, that these differences of opinion result from the adoption of different tests as to the meaning of the code. The one class proceeding upon the principle of a strict statutory construction, the other based upon a liberal and benign interpretation of the provisions to which they refer.
This section, in the opinion of the Commissioners, will obviate much of the difficulty under which the courts have labored, and will render the code, instead of a rigid and unbending statute, as construed by some, a rule of procedure susceptible of easy adaptation to the purposes of justice, which it alone has in view.
The further attainment of this object is also sought by a subsequent provision of the code, sec. 42, which gives an appeal to the supreme court, from an order affecting a substantial right, made in a civil action, involving the construction of the constitution or of a provision of this code. This