PROCEDURE. The methods of conduct ing litigation and judicial proceedings.
"Practice," like "procedure," which is used in the Judicature Acts, denotes the mode of proceeding by which a legal right is en forced, as distinguished from the law which gives or defines the right, and which, by means of the proceeding, the court is to ad minister; the machinery, as distinguished from its product. Per Lush, L. J., in 7 Q. B. Div. 333.
Prof. Thayer says (Evil. 200) that in the early days procedure was more important than law. It is the life of ancient law; 1 P. & M. XXXIII.
The term is so broad in its signification that it is seldom employed in our books as a term of art. It includes in its meaning whatever is embraced by the three techni cal terms, pleading, evidence, and practice, And practice in this sense means those legal rules which direct the course of pro ceeding to bring parties into the court and the course of the court after they are brought in; and evidence as a part of pro cedure signifies those rules of law where by we determine what testimony is to be admitted and what rejected in each case, and what is the weight to he given to the testimony admitted. Bish. Cr. Proc. § 2; Kring v. Missouri, 107 U. S. 231, 2 Sup. Ct. 443, 27 L. Ed. 506. See Cochran v. Ward, 5 Ind. App. 95, 29 N. E. 795, 31 N. E. 581, 51 Am. St. Rep. 229.
The term is, with respect to its present use, rather a modern one. Recently the supreme court of the United States com mented on the fact that it was unable to find anywhere a satisfactory definition of it. Apart from observations of the most general character the subject is one which does not admit of distinct or detailed treat ment under this title. It includes all the practical titles of the law to which refer ence should be had, with respect to any particular matter, as they are separately treated in this work.
Probably the most salient fact with re spect to legal procedure in civil cases is the modern tendency in England and the United States to obliterate technical dis tinctions between law and equity and to authorize the enforcement of equitable reme dies, as well in courts of law as of chancery. But with respect to , this tendency it has been very justly said : "Although, under modern systems, courts of law may enforce equitable rights, the proof must agree with the pleadings, and the relief granted must be within the prayer for relief and the grounds relied on." Eddy & B. Live-Stock Co. v. Blackburn, 70 'Fed. 949, 17 C. C. A.
532.
Another feature of modern thought on the subject of procedure is the controversy between the advocates of common-law prac tice and that under codes.
In England the most radical changes in procedure have been introduced by the Ju dicature Acts, which title see. Under the changes thus introduced, where one former ly, in seeking relief from judicial tribunals, was obliged to use different forms of pro cedure in different courts, these acts, and the rules made pursuant to them, "have to a very large extent introduced uniformity in this respect into the practice of the different divisions of the court." 1 Brett, Com. 336.
In criminal procedure there is a strong tendency indicated towards simplification and expedition. The most notable tendency of a general character is that towards the abolition or modification of the grand jury system, as to which see that title. Compre hensive changes have been made in the crim inal procedure of France relating to the preliminary examination of accused persons.
See JuOE D'INSTRUCTION.
A new criminal code, notable both as to the changes introduced and the care with which it was prepared, went into effect in Italy in 1890, an analysis of which will be found in 35 Am. L. Reg. N. S. 696. In Great Britain the criminal procedure of Scotland is very different from that of England not withstanding the Union, and a carefully de tailed account of it may be found in 35 Am. L. Reg. N. S. 619. As to code changes in other countries, see CODE.
In a case defining the functions and au thority of a prosecuting attorney and nas right to enter a nolle prosequi after con viction, the supreme court of Louisiana di rected attention to some differences between the criminal procedure of that state and that of England and the states which follow Eng lish precedents, The great power given to the prosecuting officer under the common law is greatly diminished in that state, and the court concludes its examination of the subject by this classification : "First. The inauguration or preliminary stage, when the prosecuting officer has ab solute control of his indictments.
"Second. The trial of the cause, and its incidents, during which the court has con trol and the power of the prosecuting officer is suspended.
"Third. The period between the verdict of the jury and the sentence of the court, when the pardoning power comes into opera tion." State v. Moise, 48 La. Ann. 109, 18 South. 943, 35 L. R. A. 701.
See POSTULATIO.