A Practical Program of Procedural Reform which will be unalterable except by legislation, and thus to furnish material for forensic strife and legislative tinker ing indefinitely. Hence, the first item in a practical program of procedural reform should be, I submit, the following principle :—
I.
A practice act should deal only
with the general features of procedure
and prescribe the general lines to be followed. leaving details to be fixed by rules
of
court,
which
the
courts
may
change from time to time as actual experience of their application and opera tion dictates. Discussion of this question need not be theoretical only. We have abundant
experience to draw upon. Undoubtedly more than one cause contributed to the untoward
fate
of procedural reform
in New York. But the chiefest factor was that the reform proceeded upon a wrong principle. I have discussed this at no little length in another place. and
beg to repeat what I then said :" “No one can lay down details of proce dure in advance with much assurance that they will not require modification. Even if they do not require modification, the rules may acquire meanings through judicial con struction, which will demand a change.
Such
changes of detail ought to be easy to make. The original New York Code unhappily went into detail aad made no provision for change. Minute details could only be altered by legis lation.
When, as a result of judicial hostility
in the earlier years of its history, narrow and illiberal constructions became fastened upon it, resort to legislative amendment was the sole resource. Thus legislative interference grew to be a fixed habit, and a revision super vened, swelling the code to some 3,000 sec
tions, which has been characterized aptly as ‘revision gone mad’. Compare with this the method employed in the English ]udica— ture Act. That act contained but 100 sec tions, with a schedule of 58 rules of practice appended, leaving details to rules of court ‘7 Some Princi lee of Procedural lll. Law Rev. 38 . 403-404.
Reform,
4
443
to be framed by the judges. In drawing up the first rules a mistake was made analogous to that made by the framers of the New York Code. The latter had their eyes chiefly on practice at law and in consequence made rules at many points which proved awkward of application to equity proceedings. Those who drew the Judicature Act and the first rules thereunder were equity lawyers, had ‘their eyes too much on equity, and hence, at first, proceedings at law were made cumber some and dilator-y. But legislation was not necessary to effect a change. The judges themselves were able to and did change the rules as experience of actual application dictated, until the present rules were devel oped. How unfortunate the results of hard
and fast legislation as to the details of procedure may prove in practice is demon strated by later English legislation with .respect to workmen 's compensation. Instead of leaving the details of procedure in such cases to general rules to be framed by those who were to administer them, Parliament enacted where appeals should go and in what manner, in such a way that in the reports styled 'Workmen's Com pensation Cases.’ we meet frequent examples of appeals dismissed because taken to a Divisional Court instead of to the Court of Appeal or vice verso-about the only vestige of appellate procedure left in England."
I have said that when the first rules under the Judicature Act in England, having been framed too much with a
view to equity practice, proved un fortunate when applied to procedure
at law, the judges gradually found the cure by improved rules. Compare with this what happened in New York. There the provisions as to joinder and as to
cross-demands were framed with a view to practice at law only, and, intheir application, threatened to abrogate the equitable doctrine of complete disposi tion of the cause and the equity of joining all persons interested in the subject of the suit and proper to com
plete relief." powerless.
But the judges were
They were bound by hard
1‘See the sarcastic remarks of Cornstock. _I., in Railroad Co. v. Schuyler, 17 N. Y., 592, 604.
