The Code of Procedure, or the New and the Old Modes of Proceeding Compared Showing the Necessity of Restoring the Forms of Actions and Pleadings in Cases at Common Law (Classic Reprint) - Softcover

Wm; H. Greene

Softcover

ISBN 10: 1331166640 ISBN 13: 9781331166641

Publisher: Forgotten Books, 2020

Synopsis

Excerpt from The Code of Procedure, or the New and the Old Modes of Proceeding Compared Showing the Necessity of Restoring the Forms of Actions and Pleadings in Cases at Common Law

Whatever the form, or nature of the writ, the justices did this by a fixed and settled set of forms, which were substantially the same in every case, called the formulae, or form of the particular ao tion, although the statement of facts on which the party relied would vary in his narrative to meet and sustain the case detailed in the original writ. The steps the party then took before the justice in obedience to the writ, came by custom to be designated according to the nature of the right or principle of law on which the writ it self was founded, and had been issued. It, therefore, took its name from the nature of the case in the writ, and from the word in that instrument which the most significantly, happily or briefly described its peculiarity. Thence there came to be as many actions, so called, as writs, notwithstanding, strictly, there was but one simple method of proceeding, in each instance, in court, particularly as by degrees the reason of the necessity of the writs which originally caused the classification became obsolete. The distinction of rights which had been created by the writs, was afterward attached to the several actions and preserved by the names in like manner given them. The enumeration of the several actions was identical with that of the writs of the writs with that of the several actions No one, as it hap pened, at last, looked beyond the narrative or declaration, the first proceeding in court before the justice, to see the nature of the action on hand. Some of these writs and the corresponding actions have long since been disused, their place having been sup plied by the use of some other, as Writs of Right, or Writs of En try, for trying the rights of property in land, as d1st1ngu1shed from those in which the right of possession only was the subject.

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Product Description

Excerpt from The Code of Procedure, or the New and the Old Modes of Proceeding Compared Showing the Necessity of Restoring the Forms of Actions and Pleadings in Cases at Common Law The constitutional origin of the Code of Procedure, appears in section 24 of article 6 of the Constitution of 1846: "The Legislature at its first session after the adoption of this Constitution, shall provide for the appointment of three commissioners, whose duty it shall be to revise, reform, simplify and abridge the rules and practice, pleadings, forms and proceedings of the Courts of Record of this State, and to report thereon to the Legislature, subject to their adoption and modification from time to time." Its legislative origin is found in section 8 of chapter 59 of the laws of 1847: "In pursuance of the twenty-fourth section of article sixth of the Constitution, Arphraxed Loomis, etc., are hereby appointed commissioners, to be styled Commissioners on Practice and Pleadings, to perform the duties there specified; and it shall be the duty of the said commissioners to provide for the abolition of the present forms of actions and pleadings in cases at common law; for a uniform course of proceedings in all cases, whether of legal or equitable cognizance; and for the abandonment of all Latin and foreign tongues, so far as the same shall by them be deemed practicable, and of every form and proceeding not necessary to ascertain or preserve the rights of the parties." No one, we believe, can well help seeing that the duty prescribed to these commissioners by the act of the Legislature, is not identical with the duty the Constitution had prescribed for them. Yet we owe the Code of Procedure to this stretch of the power of the Legislature, rather than to the Constitution, or to any ideas contained in it, either expressed or implied. The Constitution means no such thing as this revolutionary or exterminating project of the Legislature. About the Publisher Forgotten Books publishes hundreds of

Edition details

• Publisher: Forgotten Books
• Publication date: 2020
• ISBN 10: 1331166640
• ISBN 13: 9781331166641
• Binding: Paperback
• Language: English
• Number of pages: 102