and all existing rules and provisions of law restricting or controlling the right of a party to agree with an attorney or counsel for his compensation, are repealed; and hereafter the measure of such compensation shall be left to the agreement, express or implied, of the parties." To have consolidated the law in this very important and rather intricate subject, is, doubtless, great merit; but, we think, that the section abolishing all scale costs must work mischievously, and we feel certain, were it adopted in this country, that it would inevitably very much lower the standard of the profession. We also can picture to ourselves the surprise and indignation felt in many cases by the unfortunate client when his bill is sent in, drawn up in accordance with a supposed "implied" agreement, and the amount of litigation which would in such cases necessarily arise. This subject, however, although important, is scarcely an integral part of the Code, and does not in the least affect the legal principles which it enunciates. Experience will show how it works in practice; but we fully expect to hear of its revision on this point, as it really tends to place an honourable and learned profession on exactly the same footing as a butcher or baker-- or any other worthy tradesman. The 11th title treats of the important subject of appeals, and enacts generally, that every judgment or order may be appealed against, subject to the qualifications given below: The 334th section enacts that "To render an appeal effectual for any purpose, a written undertaking must be executed on the part of the appellant by at least two sureties, to the effect that the appellant will pay all costs and damages which may be awarded against him on the appeal, not exceeding 250 dollars; or that sum must be deposited with the clerk with whom the judgment or order was entered, to abide the event of the appeal. But such undertaking or deposit may be waived by a written consent on the part of the respondent. "S. 335. If the appeal be from a judgment directing the payment of money, it shall not stay the execution of the judgment, unless a written undertaking be executed, on the part of the appellant, by at the least two sureties, to the effect that if the judgment appealed from, or any part thereof, be affirmed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against the appellant upon the appeal. "If the judgment appealed from direct the delivery or assignment of documents or personal property, they or it must be brought into court pending the appeal. And if the judgment appealed from direct the execution of a conveyance or other instrument, the execution of the judgment shall not be stayed by the appeal until the instrument shall have been executed and deposited with the clerk with whom the judgment is entered, to abide the event of the appeal. "S. 338. If the judgment appealed from direct the sale or delivery of possession of real property, the execution of the same shall not be stayed unless a written undertaking be executed on the part of the appellant with two sureties, to the effect that during the possession of such property by the appellant he will not commit or suffer to be committed any waste thereon, and that if the judgment be affirmed he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of possession thereof, pursuant to the judgment, to be fixed by the judge of the court by which judgment was rendered, and specified in the undertaking." S. 342 enacts, that in the cases not specified by ss. 335, 336, 337, 338, perishable property may be sold by order of the court. The 12th title treats of 1. Submitting a controversy without action. 2. Proceedings against joint debtors, heirs, legatees, devisees and tenants holding under a judgment debtor. 3. Confession of judgment without action. 4. Offers of compromise. 5. Admission or inspection of writings. 6. Examination of parties. 7. Examination of witnesses. 8. Motions and orders. 9. Affidavits. The provisions of the 5th, 6th and 7th chapter of this title are in accordance with our own law, except that by s. 398 "no person offered as a witness shall be excluded by reason of his interest in the event of the action," except he be a party to the action or a person for whose immediate benefit it is prosecuted or defended, or an assignor of a "chose in action" assigned for the purpose of making him a witness. A party may also examine his adversary as a witness on the trial, and a party may be examined on behalf of his co-plaintiff or co-defendant; but the examination thus taken shall not be used on behalf of the party examined. The Code, therefore, it will be seen from the above extracts, does not admit a litigant party to be a witness for himself; a subject at the present moment of great interest to us as the matter has been much canvassed, and in the case of the County Courts conceded-whether with universal benefit to the cause of truth and justice admits of some doubt, as far as the experiment has yet been tried. It will thus be seen by the extracts we have given that the effect of the act is : 1st. To abolish the Court of Chancery and to create one 2nd. To abolish all previously existing rules of pleading And to make some important changes in the law of evidence. The importance of these changes is obvious, and we are glad to find that the Law Amendment Society have requested the American Minister in London to obtain from some of the leading merchants aud lawyers of the State of New York answers to the following questions: Has the practical working of this code shortened the time of litigation in each suit? Has the expense to the suitor been lessened? Have the number of actions increased? Whether they have been interested in or professionally engaged in any cause arising under it? Whether any obstacles still remain to prevent a cause being decided on its merits alone? and if so, what are they? What is the effect of the alteration in the law of evidence? Whether the members of the legal profession are, as a body, favourable to the new Code, or wish to revert to the old system? Whether professional incomes are lessened by it? By these questions the practical working of the Code will be tested, and we shall then be able to judge whether it be absolutely necessary, or for the advantage of the public, that there should be two distinct systems of jurisprudence co-existing in the same country-whether the rules of pleading, as they now exist,' may not with safety be abolished, and whether the project of introducing a system by which all causes shall be decided on their merits alone is Utopian, or, as it has been called simply, an amiable delusion. Upon these points, the commissioners have, in their third Report, expressed themselves so ably that we think we cannot do better, in this place, than give the substance of their Report. They say "it should seem to be scarcely necessary now for the commissioners to vindicate the policy of their reform. The history of the agitation which led to it, the manifest abuses of the old system of legal procedure, the demands of the people couched in language which could not be misunderstood, are familiar to the legislature. In conformity with this feeling, and in accordance with their instructions, the commissioners have removed the ancient forms from the paths of justice, and devised a new system, simple and natural in its construction, easily understood and readily adapted to any remedy which the nature of the case requires. In doing so, they have been obliged to recast the whole system of practice and pleading; with a single eye to a uniform system of pleading and trial, they have arranged the details so as to accomplish that object, and to lessen the labour and expense of legal proceedings. That there should be inconvenience resulting from these changes was inevitable. The former practice, with all its incongruities, was familiar to the Bench and the Bar; much of it consisted of arbitrary forms which a clerk could use. They who had mastered it in their youth, had forgotten the distaste with which they then regarded it, and had come to consider it as something necessary and unalterable. A sudden and total revolution in their art, a change in all their habitudes of thought and practice, the double need of forgetting the old and learning the new, the necessity of increased vigilance, and the still harder necessity of measuring themselves at a disadvantage with others having less to unlearn and more power to learn,-all these causes would necessarily make a new system unpopular with the members of the legal profession and no inconsiderable portion of the judiciary." That however is not an argument against the change, it only proves the greatness of it. Had it been less complete it would have been less censured; general approbation would have proved it worthless by showing that it encountered no prejudices and opposed no interests. That the change is great is certain, but it is certainly not greater than was required; and nothing less would have effected a remedy for existing abuses. The distinction of actions, and of legal and equitable remedies had their origin in a state of society as remote from our modern civilization as the modes of communication of our day are different from those of our ancestors. It was time that the forms of action should pass away, to take their place with the wager of law, trial by battle, compurgation by witnesses, and the grand assize, which were once as important parts of the English law as are now the forms of actions. To resist their abolition now, is to maintain, either that they are eternal, or that society has not yet reached that stage of civilization when they can with safety be dismissed; neither can be maintained without disparagement to the intelligence of the age. Law is not in its nature stationary, beyond all other sciences. It must change with changing manners, the diffusion of wealth, new channels of industry, and more general intelligence. That which was natural in the fifteenth century, is strange and uncouth in this; things which were then convenient have now become intolerable; the knowledge of that day has been multiplied many times; acts then in their infancy have grown to perfection. In other branches of knowledge advances are constantly made; the mind searches for new truths and the search is encouraged. In respect to law is the rule reversed? Are we to tread for ever in the ways of the past? In short, the argument for a legal system which is founded upon its antiquity, or indeed upon any thing but its intrinsic merits and its fitness for the people for whom it is framed, leads to an absurdity. The Report then says, "The change which the constitution contemplated, and the act appointing the commission required, had been long in coming, but was inevitable." The public mind had arrived at that stage when it could not be satisfied with less; and the commissioners say that they felt bound not to abandon it because some obstacles interposed to its immediate success, or because some present inconvenience might result from it. They then allude to the difficulty, under the most favourable circumstances, of making a new Code of laws, and claim the merit of having made the first Code of procedure ever made in a country holding the common law of England, and of supplanting, by a new work of their own creation, that heterogeneous mass called "Practice," which has been accumulating for ages; and then state that the few months of trial through which the Code has passed (written 30th January, 1849) has justified them in stating, that their Code has made justice more certain and more speedy, and that they have accomplished it in such a manner as to leave no case unprovided for and no right abridged. We have now completed the task we proposed to ourselves, and we hope that we have discharged it so as to enable our readers who have not the Code by them, to form a clear notion of the present system, and the great changes it involves; and let us not forget, that it is not among a poor, homely, un VOL. XIV. NO. XXVI. C |