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BOOK II.

OF ACTIONS GENERALLY CONSIDERED.

CHAPTER I.

OF ACTIONS IN GENERAL

The following are the definitions of the Code on this subject : Section 1. Remedies in the courts of justico are divided into : 1. Actions ; 2. Special proceedings.

§ 2. An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence.

§ 3. Every other remedy is a special proceeding.
§ 4. Actions are of two kinds :
1. Civil;
2. Criminal.

$ 5. A criminal action is prosecuted by the people of the state, as a party, against a person charged with a public offence, for the punishment thereof.

$ 6. Every other is a civil action.

$ 7. 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.

These provisions are, in substance, little more than declaratory of the old and inherent distinctions between ordinary and special proceedings, and likewise between those appertaining to civil in contradistinction to criminal jurisdiction. With the exercise of the latter, the Code, as it now stands, has no concern, and therefore the subject may be at once and permanently dismissed, merely drawing the reader's attention to section 7, above cited, under which, both civil and criminal proceedings are capable of being taken in conjunction with each other, in relation to the same act, or state of circumstances.

The boundaries between ordinary actions and special proceedings are less capable of accurate definition, and many of the measures which will hereafter be treated of in connection with the due prosecution of the former, are perhaps, strictly considered, rather of the latter nature; as, for instance, proceedings supplementary to execution (See Davis v. Turner, 4 How. 190; Dunham v. Nicholson, 2 Sandf. S. C. R. 636), and other similar steps in the ordinary assertion of the remedies obtainable by action. In practice, however, this distinction is unimportant.

There exists, likewise, in relation to real estate, a certain class of proceedings of a mixed nature, and which may be originated and carried on either in the form of an action, or in that of a special proceeding, and under the forms of either the old or new practice, at the election of the parties. Of this nature are proceedings for partition.—See Watson v. Brigham, 3 How. 290; Backus v. Stilwell, 3 How. 318, 1 C. R. 70; Traver v. Traver, 3 How. 351 ; Myers v. Rasback, 4 How. 83, 2 C. R. 13; Row v. Row, 4 How. 133,--and various other cases subsequently cited under that head; and likewise those for the admeasurement of dower,—see Townsend v. Townsend, 2 Sandf. S. C. R. 711. Proceedings to compel the determination of conflicting claims to real property, would seem, however, not to fall within this class, but to belong to that of strictly special proceedings, notwithstanding the provisions of the Code to the contrary in section 449— Crane v. Sawyer, 5 How. 372, 1 C. R. (N. S.) 30.

The different special proceedings which may be taken during the ordinary course of an action, will be treated of in due course in connection therewith ; and those prescribed by the code itself in reference to the preliminary settlement of controversies, will form the subject of an introductory chapter. The remedies unconnected with the ordinary progress of a suit, and obtainable under special statutory provisions, will be shortly noticed at the conclusion of the work; but, in accordance with its general plan, they will not be entered upon in detail, inasmuch as they are governed in all respects by the

forms of the Revised Statutes, or other enactments on the subject, and by the rules of the former practice.

By the preamble to the Code, the then present forms of actions and pleadings in cases at common law, and the distinction between legal and equitable remedies, are entirely abolished, and, with that abolition, the multiplicity of nice and subtle distinctions between the different forms of actions which formed so distinguishing a feature of the old practice, together with the numerous and intricate questions of law connected therewith, are at once and for ever annihilated. By the same preamble, when read in connection with the provisions of section 69, the formal lines of demarcation between legal and equitable remedies, and between actions at law and suits at equity, together with the previously existing forms in those actions or suits, are likewise completely swept away: and one uniform course of proceeding in all cases, whether in relation to the enforcement of private rights, or to the redress of private wrongs, to be taken in one single form of action, denominated a civil action, is distinctly and in terms established in their stead. By these provisions, the main features of the ancient and complex system, together with the numerous distinctions and conflicts of jurisdiction incident to the administration of law and equity by separate tribunals, are, beyond question, entirely superseded.

It is impossible, indeed, to conceive a more complete and radical abolition of the ancient forms and practice, than that effected by these provisions; and, so far as matters of form alone are concerned, the conclusion to be drawn from them is irresistible. Although, however, the preamble seems to contemplate the abolition of all distinction between legal and equitable remedies also, that abolition is, to some extent, and must always continue, impracticable. The code itself, in numerous respects, and particularly in the institution of two different forms of summons, and the enabling provisions for the trial of causes by the court, contains a practical recognition of the separate nature of those two branches of jurisdiction, which the preamble in terms professes to amalgamate. The mere common law or statutory action, involving a simple recovery upon a single and certain issue ; and the complicated decree in chancery, embracing the concurrent dealing with a combination of intricate and often conflicting rights, and the adaptation of proportionate relief in respect of those rights generally considered; are, in their very essence, so completely diverse, that no human wisdom could establish any one uniform system which would completely adapt itself to both these states of circumstances, or under which adequate justice could be meted out in every case arising under them. As regards certain general principles, all good pleading, whether legal or equitable, has always been substantially subject to similar rules; and, under the new system, those general principles are now of far wider scope and far more general adaptability ; but still, there must ever remain a wide and irreconcilable difference between the statements on which a mere money recovery may be obtained, and those which are requisite in order to ground a title to special or conflicting relief, under a more complicated state of circumstances. This branch of the subject is, however, so fully considered hereafter, in that portion of the work devoted to the consideration of pleading in a general point of view, in which the different cases on the subject will be found cited in detail, that it would "be superfluous to dwell further upon it for the present.

Though abolished in form, the old classification of actions arising ex contractu or ex delicto, still practically subsists, so far at least as regards the nature of the remedies obtainable in such actions; and, with reference to the nature of the relief to be granted, and of the statutory limitations imposed, an equally broad line of demarcation may still be drawn between actions in relation to the recovery of real estate, or to the enforcement of claims upon property as such, and those where the relief sought for is capable of being represented by a simple moneypayment. It would, however, be a superfluous anticipation to enter at this juncture into the details of these distinctions, which will be duly drawn and commented upon, when different proceedings in such actions are brought under consideration.

The question as to how far the provisions of the code are or are not retrospective, in relation to proceedings in actions or suits commenced before its passage, will be found fully considered in the concluding chapter of the work.

CHAPTER II.

OF THE PARTIES TO AN ACTION.

By the provisions of the Code, the old common law doctrine with respect to parties is completely superseded, and the rules of the courts of equity substituted in its stead, with few, if any modifications. See Wallace v. Eaton, 5 How. 99, and Hollenbeck v. Van Valkenburgh, 5 How. 281; 1 C. R. (N. S.) 33.

The intentions of the commissioners of practice and pleading in framing these provisions, may thus be stated in their own words, taken from page 123 of their report:

“The rules respecting parties in the courts of law, differ from those in the courts of equity. The blending of the jurisdiction makes it necessary to revise these rules to some extent. In doing so, we have had a three-fold purpose in view ; first, to do away with the artificial distinctions existing in the courts of law, and to require the real party in interest to appear in court as such ; second, to require the presence of such parties as are necessary to make an end of the controversy; and, third, to allow otherwise great latitude in respect to the number of parties who may be brought in.!'

The equitable interest is, accordingly, with very few and slight exceptions, the grand criterion as to who are, or are not, the necessary or proper parties to a proceeding, of whatever nature: and it is therefore indispensable that the doctrine of the former courts of chancery in relation to this subject, should be carefully studied; without which study, though the practice in ordinary cases may be easily understood, the principles which govern that practice cannot. Safer guides cannot be taken in this respect, than Mr. Edwards's valuable work on parties, and the 3d and 4th chapters of Story's Commentaries on Equity Pleading; to which, and to the many elementary and other treatises on the same subject, the reader is accordingly referred. The remaining considerations upon it will, therefore, be

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