to take the judiciary out of politics. This provides that candidates for the judgeships shall be nominated only by petition, and that neither in the petition nor in the ballot shall they be given any party designation. In behalf of this device, it is urged that it would put an end to the haunting of conventions and the buttonholing of delegates by judges, the bargaining of candidates with bosses that sometimes takes place, the accusations of selling nominations at $1,000 apiece that have sometimes been heard, and the slaughtering of a De Haven in a bossridden convention. In the present state of our judiciary system, any scheme of reform is worthy of careful consideration. Mr. Wright's sugges tions will rouse interest in a matter of the first importance." An application to the attorney-general asking permission to bring an action against certain officers of the Coffee Exchange of the city of New York, to procure a judgment of suspension or removal of them from office for abuse of trust or misconduct, arising out of transactions in adulterated coffee, has been granted. The attorney-general in granting the application hands down the following opinion: "We have consigned the proofs and briefs and arguments of the parties, and believe that evidence was presented to the adjudicating com traffic in which the statute prohibits. The State out of the plenitude of its power gave a charter to this corporation to accomplish the purpose expressed in the statute, and as described in People, ex rel. Thatcher v. The New York Commercial Association, 18 Abb. P. R., 271-179. To establish a high moral standard in conducting business transactions and to exercise somewhat of a control over those who belonged to it. It reaches a little beyond the precise legal rights of its members in their business conduct, subjecting them to a supervisory care, so far as fair dealing is concerned, to which they would not ordinarily be amendable. in any tribunal known to the land.' The presence of adulterated food in the market is a nuisance. It jeopardizes the health and lives of the people. A corporation which sanctions, suffers, and regulates such traffic is at war with the best interests of society, and officers who knowingly permit, suffer, and compel traffic therein offend the laws of the State, as above quoted, encourage the existence of a nuisance, and violate the just principles of trade by placing a fraud upon the market. The State is interested in the highest degree in the protection of the lives of its inhabitants, and when any officer of a private corporation is guilty of the acts aforesaid there can be no question but that the conduct of such officer has been 'misconof his trust.' We think the purposes of the duct' and that he has been guilty of an 'abuse State would be subserved if an action should be brought to suspend or remove the members of the adjudicating committee and such members of the board of managers as sustained them mittee that this coffee was adulterated food. It was their duty to have examined that question. If it were adulterated it was not the subject of commerce and trade. The said committee, therefore, failed to discharge its duty and fostered by its action trade in such food. It is seriously claimed upon the part of the ex-in their decisions compelling the selection of a change and its officers that no evidence was submitted to show that such coffee was artifici- rules of the exchange, without knowledge of grader. The grade arbitrators acted under the ally colored with intent to conceal damage or the parties or the claim that the coffee was make the same appear better than it really was. adulterated, and hence are scarcely open to acThe question of intent is one largely to be de- cusation of misconduct. Upon the filing of termined from conditions and circumstances. the usual bond in the sum of $2,000, and the Here the standards chosen by the grade arbi-making of the stipulation required by the rules trators were before the officers, the artificial of this office, the action may be brought." coloring of the coffee visible to the naked eye. Why was it colored? and what purpose could coloring said coffee serve, except to make it more salable, and to hide its defects and make it appear better than it really was? We have no doubt that every officer of the exchange who has examined such coffee knew it was an article In Milbourn v. David, decided in the Supreme Court of Delaware, it was held that where one tenant has sole possession of the common property, it is presumed to be with the consent of his cotenants. REVISION OF THE CODE OF PROCEDURE. THE HE movement in favor of a revision and simplification of the Code of Proceedure in this State has been taken up recently, not only by individual members of the bar throughout the State, but by the different bar associations, and a careful revision with a view to condensation is a question of the 1877 and 1880, it contains thirty-three hundred and ninety-seven sections, and others must be added regulating procedure as to mechanics' liens, receiverships, general assignments and other matters, in in order to complete a system of practice. "Second. By including provisions not only for the organization of courts of record, but minute near future, in view of the substantially unanimous details as to their powers, and the duties of officials connected with them, with rules for the government of inferior tribunals, and enactments as to the ad action of the lawyers and association of lawyers on the subject. At the meeting of the New York State Bar Asso-missibility of evidence, it has become cumbrous ciation in January, a resolution was adopted, upon the unanimous recommendation of the committee on law reform, by the unanimous vote of the association as follows: Resolved, That the Legislature is earnestly requested to make proper provision for a careful and thorough examination of the Codes of Procedure of this and other States, including the so-called Practice Acts in force in this country and abroad, and the rules of court adopted in connection therewith, and report in what respects the Civil Procedure in the courts of this State can be revised and simplified." A proposed bill for the purpose of carrying out the views of the association was also presented, being substantially that which is presented to the Legislature for that purpose, and with reference to the bill it was and unwieldy as a Code of Procedure, and is so arranged as to render it inconvenient as to form and difficult for reference and examination. "Third. Many provisions of the substantive law have been included in different portions of the work relative to procedure interfering with its symmetry as a system of practice, and giving unnecessary labor to the practitioner in referring to such enactments. "Fourth. Very many of the provisions and sections of the Code have been so construed and in terpreted by judicial decision that it is necessary to carefully examine a number of authorities to find the precise meaning placed upon the language used by the courts; this, in most instances, where a clear and explicit statement of the rule finally adopted could be readily made. "Fifth. Very many of the provisions are reenactments of statutory provisions, which should be much condensed, and the proceedings rendered less complex and intricate. In other instances, the Code is exceedingly diffuse and minute in detail, “Resolved, That the association recommends to the Legislature the enactment of the following bill and that the members of the association and the bar of the State be requested to aid in its passage by correspondence, petition and by all other legiti-embarrassing rather than aiding in the administramate and proper means. This was also unanimously adopted. This action had been preceded by a report of the Committee on Law Reform, made to the association in the following terms: "Your committee is of the opinion that a careful examination should be made by competent authority of the provisions of the present Code of Procedure, as to the necessity and propriety of a partial revision, and with a view to its condensation and simplification, and to inquire whether a rearrangement upon a more scientific basis would not make it more valuable and convenient." Also by action taken by the committee, by way of memorandum, setting out the advantages of revision, as follows: "First. The original Code of Procedure, consisting of four hundred and seventy-three sections, and covering all general matters of practice, has been increased by the addition of rules relative to special actions and proceedings and enactments as to the organization of the courts, together with rules of evidence, until, as the Code of Civil Procedure of tion of justice. "Sixth. Its classification of topics is neither scientific nor practical; and is misleading and perplexing alike to the student and practitioner. "In view of these considerations, we respectfully request that provisions be made by law for an examination by competent and authorized authority as to whether it is desirable that the Code of Procedure should be simplified and revised, separating those portions relative to organization of the courts from that part relative to actual practice therein and from the matters relating to the admissibility of evidence, leaving the practice substantially as at present, but more simple and less technical." This memorandum was presented by J. Newton Fiero, R. F. Wilkinson, John J. Linson, Z. S. Westbrook, Irvin W. Near, Joseph Mason, Adelbert Moot, William B. Hornblower, Garret J. Garretson, G. M. Diven, Henry H. Seymour, Charles T. Saxton, John Cuneen, Charles A. Collin, A. H. Sawyer and Louis M. Brown, members of the Committee on Law Reform. The proposed action has also been heartily in dorsed by Austin Abbott in a memorandum pre- have the proposed committee so constructed as to pared and published by him. In accordance with this action, the matter was taken up by the Committee on Law Reform and a correspondence had with leading members of the bar throughout the State. We are permitted to give extracts showing the views of the leading lawyers upon the subject. Elihu Root says: "I think the Code of Procedure ought to be revised and simplified. We ought to return to the original idea of the code - to simplify practice. I have always regarded Mr. Throop's revision as an unwarrantable departure from that original idea. That revision and the subsequent host of amendments have given us a code of which every lawyer in the State ought to be ashamed. "It is huge, cumbrous, intricate; its mass of petty details is full of traps for the unwary and of obstructions to prevent courts from doing justice. There is something amazing in the muddle-headed ingenuity which has been expended to make things naturally simple and easy, as complicated and difficult as possible. represent the views of the judges who have to pass upon the matters eventually, as well as the most expert practitioners from different parts of the State." Edwin A. Nash, county judge of Livingston county, says: "I am decidely in favor of an intelligent revision of the Code of Civil Procedure. The proportions of the Code might, it seems to me, be greatly reduced. Redundancy is the one great defect in Mr. Throop's additions to the Code of Civil Procedure; his nomenclature has not taken root and can easily be dispensed with as surplusage. There is no reason why our Code should not speak the same language we use in court." John E. Parsons says: "In my judgment, the question resolves itself into the consideration of who, if the work is to be done, should do it. That a revision is needed, it seems to me to be clear. The doubt comes from the uncertainty whether the revised work will be an improvement." Delos McCurdy says: "If we could have a revision of the present Code which would take us "I hope the Legislature will take the matter up back to the brevity and simplicity of the Code as it seriously and give us speedy relief." Ex-Judge A. B. Tappan says: "The Code of Procedure should be revised for the purpose of condensation, not enlargement; it is too bulky." Walter S. Logan says: "There is no doubt but that the Code of Procedure needs revision. There are many crudities and absurdities in it. It seems to me that the revision should be entirely in the way of simplification. "I appreciate fully the difficulties which lie in the way of providing a system which shall enable the honest litigant to fairly present his case, and shall not permit the machinery to be used by a dishonest plaintiff or defendant to harrass and annoy his adversary or procure undue delay; but I think the object to be gained is worth all the effort, and that much can be accomplished in this direction by a wise and careful revision of the Code of Procedure." County Judge D. W. Guernsey, of Poughkeepsie, says: "As to whether it is desirable to take steps to have a revision of the present Code of Procedure by bill for the appointment of counsel to report to the next Legislature, I say decidedly, yes. In many of the sections there is much ambiguity and much surplusage. The revisers, whoever they are, should aim at simplicity and directness." David Millar, county judge of Niagara county, says with regard to the revision: "It should be done guardedly and chiefly upon the lines of the changes recommended by the committee of the Bar Association in the report made just prior to the last meeting. I should consider it of the first importance to was prior to the passage of the act of 1876, I should be pleased. If, however, revision means extension and amplification, I want none of it. Of that kind of revision which merely extends, amplifies and multiplies provisions until a concordance is required, we have had quite enough." Charles E. Hughes, late lecturer in Cornell University and member of the firm of Carter, Hughes and Dwight of New York city, says: "It seem to me very necessary that something should be done in this direction and that the Legislature should pass the proposed bill." Robert E. Deyo says: "I entirely approve of revision on the lines suggested in the articles that have appeared in the ALBANY LAW JOURNAL.” Hamilton Odell says: "I am opposed to any bill which concedes that possibly the Code of Civil Procedure does not need to be revised. I would have a commission appointed at once with power to revise the thing to death. Let us have something new, something coherent and conservative and within the reach of the average mind." H. D. Wright, district attorney of Fulton county, says: "I believe that the Code needs a further revision so as to make it more concise and clear. A comparison of our Code with that of Massachusetts and Kansas shows it may be revised to a considerable degree. I believe the appointment of counsel as proposed would be very beneficial." Frederick G. Paddock, district attorney of Franklin county, says: "I approve of the appointment of a committee by the Legislature to make a revision of the Code, and that the revision should be made along the lines marked out and proposed vision of the Code of Procedure. Whatever revision by the State Bar Association." we have, in my opinion, should be in the hands of a commission very carefully selected and of reasonably large number." Safford E. North, county judge of Genesee county, says: "I am in favor of a systematic effort to have the Code of Procedure revised, condensed and improved. I think no time should be lost in securing the proper legislation to the end in view, and it seems to me that the suggestion that counsel be designated to report to the next Legislature as to the desirability of revision is on the whole a judicious preliminary step." Ledyard P. Hale, district attorney of St. Lawrence county, says: "The whole question of a revision of the Code of Procedure is, who is going to revise it; if it is to be revised with intelligence, it can certainly be improved; if not, it will certainly be made worse. Whether I should favor a revision would depend upon the men selected to do the revising. The Throop Code is like the Albany capitol, but whether it would be advisable to undertake a reconstruction would depend wholly upon the architects employed." 66 Ex-Judge George M. Van Hoesen says: 'There ought to be a revision and a thorough one. The Code of practice ought to be brought within reasonable limits and put into simple English. Two able men, accustomed to express themselves clearly and concisely, with a knowledge of practice, and with a natural inclination to make the practice easy and convenient, could, I believe, do the work of revising the Code and place the public and the bar under lasting obligations." Ex-Judge George G. Reynolds, of Brooklyn, says: "As the Code, by numerous amendments from time to time, has become a patch-work affair and there are still many crudities and much that needs amendment about it, I think the proposed measure would be a good thing." Joseph Larocque, President of the Association of the Bar of the city of New York, writes: "That the Code of Procedure, in its present form, is sub Joseph V. Seaver, county judge of Erie county, says: "I believe such an act as suggested should|ject to many of the criticisms and objections referbe passed at once and I fully concur in the movement." red to in the paper presented at a joint meeting of the executive committee and committee on law reform of the New York State Bar Association, October 9, 1894, is, I think, beyond question. That it might be revised and greatly improved seems to me equally clear. On the other hand, our past ex Owen T. Coffin, surrogate of Westchester county, says: "It is now nearly fifty years since we first heard of the Code, and after all the legislation on the subject since, it would be strange indeed if a revision of the whole subject would not be advan-perience indicates that we may perhaps better bear tageous." William J. Curtis, of Sullivan and Cromwell, says: "It would be infinitely preferable, in my judgment, to return to common-law pleading rather than to submit to the annoyance of trying to practice under such an incongruous and ridiculous act as the present Code of Civil Procedure." Austin G. Fox says: "Could less be put in a Code and more left to rules of court, we should, I think, be better off. Could it be repealed and replaced by an act framed by men who had no private notions which they desired to embody in the act, and who were qualified by sound training and long experience, we might, indeed, expect relief." Francis Lynde Stetson says: "I heartily concur in the desirability of some effort to condense our present huge and cumbersome Code. Benisons await the successful and genuine codifier, as distinguished from a reformer of our laws.” J. A. La Seuer, district-attorney of Genesee county, says: "In my judgment, a revision of the Code is desirable, not so much for the purpose of extension or abbreviation as for the purpose of making more clear that which is already embodied therein." Albert Stickney says: "My present impression is quite strong that there should be some further re the ills we have than fly to others we know not of. All would depend upon the competency and thoroughness of those to whom the work of revision might be entrusted. I hesitate, therefore-, to pronounce decidedly in favor of the attempt." William B. Davenport, public administrator of Kings county, says: "It seems to me most important that care should be taken in the appointment of attorneys to report upon the question of the revision of the Code of Civil Procedure, whose actual experience in practice will fit them to appreciate changes necessary. That such revision is needed goes without saying. To enter into minute consideration of the changes needed would be impossible within the limits of a letter." "The appoint Charles Stewart Davison says: ment of two conservative counsel to report to the next Legislature in relation to a revision of the Code of Civil Procedure would be, in my opinion, desirable. I believe that the enormous increase of the technicalities of practice with the incident reduplication of labor, is to a large extent, attributable to the embracing in the Code of Procedure a vast amount of matter which should be dealt with by the rules of court and matters which in no wise relate to Civil Procedure. I therefore deem it wise that efforts should be made in the direction of simplification of the practice in this State. I regard the present statute as to a large extent the result of the attempt to provide for every possible contingency by a hard and vast rule, which rule of itself requires construction. Should the intent, with which the present revision is sought, be to still further enlarge and increase the specifications of the Code, I should regret the appointment of revisers. If it be intended in the direction of simplification, I should welcome it." Eugene E. Sheldon, county judge of Herkimer county, says: "I am inclined to favor the act referred to." George Underwood, county judge of Cayuga county, says: "I am heartily in favor of the revision of the present Code of Procedure. I have no doubt that careful work can reduce the bulk of the present Code at least one-half, possibly much more. I should hardly think it necessary to appoint counsel to report to the Legislature as to whether a revision is desirable, because it seems to me that very little effort would be needed to convince the Legislature that such revision is desirable. The remedy, it seems to me, would be to apply for a committee on revision." A. A. Van Dusen, county judge of Chautauqua county, says: "I am in favor of the passage of the act. The details of the work must be left to those who have it in charge, but the time for revision has come." George H. Adams, of Holmes & Adams, New York city, says: "I very cordially approve of the proposition for a revision of the Code of Procedure. I should advocate some plan for selection of proper counsel, by which joint action could be obtained through committees of conference or otherwise of the bar associations of the State, or be selected by the Governor, who would appoint upon proper investigation and probably upon recommendation of the associations." Adrian H. Joline, as to the Code, says: "I regard it as a most unwieldy, cumbersome and unscientific thing, and most cordially approve of the proposition to revise it, hence I am in favor of the passage of the act which is in contemplation." Everett P. Wheeler says: "Our Code of Procedure seems to me entirely too complex. The general criticism I will make upon it is that it attempts to deal too much with details. I own I should like to see it revised and simplified, but I fear that if the attempt should be made, it would have the same result as the last; that is to say, we should have a more rather than a less complicated system." John L. Cadwalader says: "I believe the work would be better done through the bar associations, and, at any rate, if any such thing is to be done, that the limits of inquiry and the points to be reached should be very sharply defined by careful consideration before hand." Francis C. Barlow says: "The Code (which is a combination of the Revised Statutes and the old Code of Procedure) ought to be carefully condensed and simplified, and some brains put into it,' as Governor Tilden was accustomed to say. I quite agree about the appointment of a commission to amend it." William D. Veeder, late surrogate of Kings county, says; "Much of the Code is purely statutory law, and has no place in a Code of Procedure, which should relate exclusively to practice in the courts. I therefore think it proper that an act should be passed providing for the appointment of a commission for the revision of the Code, for the purpose of securing the advice and knowledge of our best practitioners." John Brooks Leavitt says: "We ought to go further, and instead of trying to amend our present Code of Procedure, abolish it altogether, and have, instead of it, a short practice act, giving courts the power, by appropriate rules, to provide for the practice." James C. Carter says: "The question of the expediency of a revision of the Code of Procedure is a difficult one. There are revisions and revisions. What we now have is the last of a series of successive revisions, each of which has made the condition of things worse than that which preceded it. It is the easier and more probable thing that a new revision will be of the same character. If such a work could be put in the hands of one or two of the very ablest minds, who perfectly comprehended the subject and perceived the feasibility and necessity of going back to the simplest principles of the law of procedure, and would confine the statutory provisions within a very brief compass and leave all details to be shaped by judicial action in the form of rules of court, a very useful result might be produced. If, on the other hand, the work is put into ordinary hands, not thoroughly imbued with a scientific knowledge of procedure and with the history of that department of law, we should have another merely perfunctory performacce which would tend to increase instead of diminishing the present perplexity." Wheeler H. Peckham says: "In my judgment, there is nothing which needs revision more than the Code; it is altogether too complex in details, and three times too long. I would be decidedly in favor of a bill, such as is suggested, and that a commission, appointed for the purpose, should have ample power of amendment as well as revision." |