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THE CODE

OF

CIVIL PROCEDURE.

AN ACT

TO Establish a Code of Civil Procedure.

The People of the State of New-York, represented in Senate and Assembly, do enact as follows:

PRELIMINARY PROVISIONS.

SECTION 1. This act to be known as the code of civil procedure, of the State of

New-York. 2. Division of the code, into four parts. 3. Rule of construction of this code. 4. Code, not retroactive, unless where expressly declared. 5. Judicial remedies, defined. 6. Division of judicial remedies, into actions and special proceedings. 7. Definition of an action. & Definition of a special proceeding. 9. Division of actions, into civil and criminal. 10. Civil actions arise out of obligations or injuries. 11. Definition of an obligation. 12. Definition of an injury. 13. Definition of an injury to property. 14. Definition of an injury to the person. 15. Out of what a criminal action arises. 16. Definition of a civil action. 17. Definition of a criminal action. 18. Civil and criminal remedies not merged in each other.

SECTION 1. This act shall be known as the Code of Civil Procedure of the State of New York.

§ 2. This Code is divided into four parts: The first relates to the courts of justice: The second relates to civil actions :

The third relates to special proceedings of a civil nature:

The fourth relates to evidence.

The Commissioners have unanimously agreed upon the division of the Code, as provided in this section, except as to the fourth part,--that relating to evidence.

From the introduction of that part, Mr. Graham dissents.

§ 3. The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code. The Code establishes the law of this state, respecting the subjects to which it relates; and its provisions, and all proceedings under it, are to be liberally construed, with a view to promote its objects, and to assist the parties in obtaining justice.

The rules of statutory construction present one of the widest fields of learning known to the lawyer. While it is a general principle, that the will of the legislature, as expressed in a statute, is to be carried into full effect, and that, for the purpose of ascertaining it, every source of information is to be resorted to, such as its title, its prearable, its history and attend

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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 1. 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 writings 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, wbere 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 curt, 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

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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

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