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awoke suddenly to the fact that it was the law of the state, and that within three months from its passage the old forms of pleadings and proceedings were to be known no more.

Nevertheless, no special dissatisfaction was manifested until after the new code had gone fully into operation. The first few years thereafter were by no means creditable to the bar of New York. Every difficulty was thrown in the way of the operation of the new system. Every doubt was magnified-every blunder of a lawyer was imputed to the code. No honest effort was made, by those who complained of its vagueness, to cure its defects, and supply what it needed, but all their exertions were devoted to the distortion of those provisions which were the most unmistakable and vital of any. The legislature of 1849 was generally hostile to the code, and would have repealed it outright, had it not been for the fear of the people at large, who did not sympathize with the lawyers.

The professional members of the legislature of 1850 were even more bitter against the code than those of 1849. The commissioners now reported their work complete-the so-called Code of 1848 being confessedly only a fragment of the whole, though the most important part. The committees appointed to examine the work of the commission entered upon their duty with unconcealed dislike, and used all their efforts to prevent the codes from being enacted. There were some peculiar features of the bills as reported, which were far in advance of public sentiment at that day; and these, though by no means vital to the work as a whole, were eagerly seized upon by its adversaries, and perhaps unnecessarily insisted upon by its friends. It would have been a great thing gained to have secured even a mere codification of the practice as it was, leaving amendments for a future period. This was not, however, done. The fact that the proposed code changed the name of the writ of habeas corpus to the writ of deliverance was the principal argument used against it, and this weapon proved successful. The codes reported by the commissioners needed, without doubt, very careful scrutiny, and some alterations. The expediency of some of the changes proposed by them may even

yet be doubted, although some of the most important have been adopted piecemeal by later legislatures. But there can be no question in the mind of any reasonable man that all the rules of practice which are now scattered through the revised statutes, and in the reported decisions, ought to be brought into a single statute, and arranged in their appropriate order. This is not yet done, and if it is left to the unprompted wisdom of legislators or to the public spirit of the bar as a whole, probably never will be done.

The code, in its fragmentary form, was thus left to make its way. Its enemies could not repeal it, though they could prevent it from being perfected. The first ten volumes of Howard's Practice Reports, and the first fifteen of Barbour, contain abundant evidences of the perversity with which a large part of the bench, as well as the bar, strove to nullify its plainest intentions. It was not until very recently that its very foundation and vital principle, the union of law and equity, was conceded to have any existence at all.

But such disfavor was not universal. Some of the justices, and those whose good opinion was most valuable, recognised the intrinsic merit of the new system. Mr. Justice DUER (People vs. Sturtevant, 3 Duer 621) used the following language:

"Whatever may be the terms in which other persons may choose to describe their" (the commissioners') labors, in my deliberate judgment they have accomplished, and, generally speaking, ably and successfully accomplished, a most difficult as well as important and honorable task. The monument that has been raised, as a work of science and art, may doubtless be improved. Its defects may be supplied, and its proportions corrected or enlarged. But the foundations are solid and deeply laid, and the structure will stand.-Manet et manebit."

The Code of Procedure was far more popular abroad than at home. Missouri adopted it in substance in 1849, and many other states adopted in whole or in part the complete code which New York rejected in 1850. California adopted the civil and criminal codes entire in 1851. Ohio, Indiana, Wisconsin, Kentucky, Minnesota, Kansas, Alabama, Oregon, and all the new territories, except Colorado, New Mexico and Utah, have adopted the substance of the complete codes, though one or two of the states have

retained a partial distinction between law and equity. The legislation of Massachusetts, Mississippi, Michigan, and some other states, has been largely influenced by it. Its effect upon the legislation of England and her colonies is perhaps its most remarkable triumph, although not so complete as it has been in some of the

western states.

The new rules" of 1830 remained as the tide-water mark of reform in the practice of the English courts for many years. The doctrines of Bentham, in regard to the evidence of interested parties, took deep root, and were gradually incorporated into law, but in other respects little progress was made, when the news of the adoption of a new system in America reached Great Britain.

The nature and operation of the New York Code were not much understood by English lawyers until the autumn of 1850, when Mr. Field addressed the Law Amendment Society, at its request, upon the subject, after which the society issued letters of inquiry to a number of prominent American lawyers, requesting their opinion upon the practical workings of the code. The responses to these questions were generally favorable to the new system, and the exceptions were rather amusing than weighty. Judges McCoun, Harris, Parker, Brown, Sandford, Duer, Campbell, Bosworth, Hoffman, and Daly, besides some leading members of the bar, expressed their approval of the general principles of the Code in warm terms, while Judge Ingraham, William Curtis Noyes, Esq., and others, substantially, though more guardedly, concurred. But Mr. B. Davis Noxon insisted, that among lawyers in this state, holding a high standing in the profession, there was but one opinion about the code, and that was unfavorable to it." His hostility, however, did not carry him so far as that of another gentleman, who seems to have directed his clerk to answer "No," to every question, so palpably absurd are some of his responses. These two were the only ones who even then ventured to recommend the repeal of the Code, and the appointment of commissioners of experience-David Graham, we suppose, having had none.

The law reformers of England were encouraged by these answers to prosecute their work, and in 1851 they secured the appointment of a commission on the subject, which reported a bill more sweep

ing, perhaps, in its operation, than the Code, except that it did not consolidate law and equity. Pleadings were reduced to a brevity worthy of a drum-head court-martial, and the practice was made as simple and direct as possible. This bill became a law in 1852. In 1854, equitable defences were allowed to be set up in common law courts, and Lord WESTBURY, the present Lord Chancellor, is well known to be ardently in favor of adopting the only remaining principle (though the chief one) of the New York Code-the complete fusion of law and equity. The whole current of opinion and of events seems to be tending that way. If Lord WESTBURY should remain long in office, he will undoubtedly accomplish his favorite object, and even if the Tories should gain possession of power, they are no longer what they once were, and will not throw many obstacles in the path of a just and necessary reform.

In the state of New York, the work thus accomplished has never been estimated at its proper value, and probably never will be by the present generation. Every little narrow-minded lawyer even yet delights to cast a stone at the Code, and to ridicule the reforms which elicited warm praise from the greatest names of the English bench and bar. The legislature has never found time to complete its examination of the entire Codes of Procedure, and a mere fragment of the whole is all that is law. But time will do justice to the ability which devised and the labor which prepared this great work. That which has been done will never be undone, and at some day, when we have a legislature not exclusively devoted to lobby business, it will take up this unfinished task, and complete that which ought to have been completed years ago.

VOL. XII.-34

T. G. S.

RECENT AMERICAN DECISIONS.

Supreme Court of Illinois.

EMERSON vs. CLAYTON,

Under a statute providing that the separate property of a married woman shall remain under her sole control, &c., a married woman, as to her separate property, is in the condition of a feme sole, and may bring an action at law in her own name, without joining her husband.

The opinion of the Court was delivered by

BREESE, J.-On the twenty-first of February, 1861, an act was passed by the General Assembly of this state, entitled "An Act to protect married women in their separate property," which provides That all the property, both real and personal, belonging to any married woman, as her sole and separate property, or which any woman hereafter married owns at the time of her marriage, or which any married woman, during coverture, acquires, in good faith, from any person, other than her husband, by descent, devise, or otherwise, together with all the rents, issues, increase, and profits thereof, shall, notwithstanding her marriage, be and remain, during coverture, her sole and separate property, under her sole control, and be held, owned, possessed, and enjoyed by her the same as though she was sole and unmarried; and shall not be subject to the disposal, control, or interference of her husband, and shall be exempt from execution or attachment for the debts. of her husband." Sess. Laws, 1861, page 143.

At the March Term, 1863, of the Clinton Circuit Court, the plaintiff in error filed her plaint in that court in replevin for certain chattels, against the defendant in error, claiming the chattels as her own property.

To this plaint the defendant pleaded in abatement the coverture of the plaintiff, at the time of the commencement of the suit. To this plea, the plaintiff replied that the property sued for was, during her coverture, acquired in good faith from persons other than her husband, with her own money and in her own right, and

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