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The Pamphlet Collection of Sir Robert Stout: Volume 32

Code

Code

of procedure, and it would certainly be a great advantage page 10 if such a code existed in this colony instead of having Acts relating to the administration of justice in almost every volume of the statutes of the General Assembly. Nor would such a code be difficult to frame, it being a very different proceeding from codifying all the laws of the colony. As an illustration of the tendency in America to codify I may mention that in the State of California they have a penal code, a civil code, a code of procedure, and a political code. Amongst the important alterations effected by the New York code, passed many years ago, I may mention that the distinction between legal and equitable remedies was abolished, and that where the violation of a right admits of both a civil and criminal remedy, the right to prosecute the one is not merged in the other. An injunction may be obtained to protect a defendant's property where it appears by affidavit that he threatens to dispose of such property so as to defraud his creditors. One of the sections provides that the allegations in a pleading shall be liberally construed so as to effect substantial justice between the parties. Except in certain actions all costs are in the discretion of the Court, and when costs are allowed the amount is fixed according to a scale. For example, for all proceedings before notice of trial in an action in which the plaintiff would be entitled to judgment without application to the Court, 15 dollars, and to either party on appeal before argument, 30 dollars; for argument, 60 dollars. Under section 218 the defendant may recover, by way of set-off, any amount due to him in excess of the plaintiff's claim (see our rule 105); or if it appears that the defendant is entitled to any other affirmative relief judgment must be given accordingly. A somewhat similar provision has been inserted in the rules framed under the English Supreme Court of Judicature Act, 1873. Already, in the case of Hillman v. Mayhew, decided in February last, and reported 34 L.T. N.S. 256, a decision on this branch of the Act has been delivered. Singularly enough the circumstances of that case came almost within the letter of the precedent given in the rules framed under the Act. In the Colony of Queensland, under the Common Law Procedure Act of 1867, it is provided page 11 that all matters which were then only the subject of a cross action might thereafter, by leave of a judge, be pleaded by way of set-off.

I may here remark that in California an applicant for admission to practice in a State Supreme Court must be at least 21 years of age, and produce satisfactory evidence that he has a good moral character. He must also declare his intention to become a bond fide citizen of the State, and pass a strict examination in open Court. On admission to the Supreme Court the applicant is entitled to practice in all Courts in the State. He may, however, apply to be admitted to practice in the District or County Courts, in which case on admission he can practice only within the respective limits of these Courts. No articles of clerkship or pupilage appear to be necessary.

I may now refer to several important distinctions between the laws in America and England respectively in regard to rules of evidence, and I shall begin with the question of