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IN T R O DUCTION.

THE statute known as “The Code of Procedure,” was passed April 12, 1848, and went into operation July 1, 1848. It contained 391 sections, and continued in operation in the form as passed, until the 1st of May, 1849, and was during that period known, and has ever since been generally known and distinguished as “The Code of 1848.”

The code of procedure (with some few exceptions), applied only to actions commenced after it took effect; but by an act passed April 12, 1848 (Laws of 1848, p. 566), amended by an act passed April 11, 1849 (Laws of 1849, p. 705), certain sections of the code of procedure were applied to actions at law and suits in equity then pending, and provision was made for the determination of suits then existing, and for holding courts in the first judicial district. In the latter respect it was amended by laws of 1852, p. 591. This act is known as the supplement to the code, and as the “supplementary act.” Actions and suits which were pending on July 1st, 1848, have since that day been known and designated as “existing suits,” and the sections of the code which the “supplementary act” applied to such suits are: Sections 72, 121, 169 to 176, both inclusive, 315, 388, 292 to 302, both inclusive, 323 to 331, both inclusive, 333 to 347, both inclusive, 351 to 371, both inclusive, 390 to 399, both inclusive, 402,406 to 415, both inclusive, 417, and 418.

On April 11, 1849, an act was passed amending “the Code of Procedure,” which took effect May 1, 1849, (4 Pr. R. 41), and continued in force until July 30, 1851. This act altered the wording of a majority of the sections in “the Code of 1848,” added entirely new sections, and contained in all 473 sections. While this latter act remained in force it was generally known and designated as the “Amended Code.” It has since been more customary to designate it as the code of 1849, to distinguish it from subsequent amendments. By a statute passed at the session of the Legislature held in 1851, section 49 of the code of 1849 was repealed, and section 47 of the same code was amended. (Laws of 1851, p. 8.) By a subsequent act of the same session of 1851, an amendment was made to the following sections and subdivisions of sections of the code of 1849: Sections 11, 13, 14, 16, 24, 30, 31, 53 (subd. 3, 9), 56, 57,60, 61,62, 64 (subd. 11), 68,74, 99, 100, 101, 111, 113, 114, 116, 122, 126, 130, 131, 132, 134, 135, 136, 138, 139, 142, (subd. 2), 149, 152, 153, 156, 157,158, 162, 172, 173, 174, 179 (subd. 3), 188, 193, 231, 244, 246 (subd. 2, 3), 252, 255, 258, 259,263, 264, 265, 268, 269, 272,273, 278, 281 (subd. 2), 282, 284, 287, 291, 292, 297,298,302, 306, 307 (subd. 6), 317, 339, 348, 349, 353, 354, 366, 371, 384, 385, 397, 399, 459, 460, 470. See Laws of 1851, p. 876. This act passed 10 July, 1851, took effect 30 July, 1851, and its application to actions then pending was prescribed and limited by section 459. The 30th section of the code of procedure was again amended by an act passed at the session of the Legislature held in 1852. (Laws of 1852, p. 41.) And at a later period of the same session, amendments were made to sections, 11, 13, 30, 33, 64, 101, 116, 140, 149, 150, 153, 167, 168, 173,244, 245, 252,253, 255, 264, 265, 268, 272, 274, 278, 281, 287, 307, 317, 348, 349, 353, 354, 359, 360, 367, 397, 401, 460, 470, and 471. (Laws of 1852, p. 651.) These amendments passed April 16, and took effect May 6, 1852. Other amendments to the provisions contained in the code of procedure have in effect, but not expressly, been made by other enactments, namely: To section 9 by laws of 1852, p. 471. To section 10 by laws of 1848, p. 282; laws of 1849, p. 27; ib. 117; ib. 150; ib. 435; laws of 1850, p. 9; ib. 20; laws of 1851, p. 308. To section 11 by laws of 1850 p. 148. To sections 13 and 16 by laws of 1849, p. 484, and laws of 1850, p. 45. To section 18 by laws of 1849, p. 117. To section 21 by laws of 1852, p. 591. To section 23 by laws of 1850, p. 9; ib. 20. To section 27 by laws of 1849, p. 27. To sections 29 and 30 by laws of 1849, p. 292, and laws of 1851, p. 22. To section 31 by laws of 1849, p. 111; and laws of 1851, p. 822; ib. 825; ib. 906. To section 33 by laws of 1848, p. 34; ib. 92; ib. 481; ib. 490; ib. 497; laws of 1849, p. 165; ib. 168; ib. 170; ib. 186; ib.435; ib. 487; laws of 1850, p. 208; ib. 148; laws of 1851, p. 8; ib. 907; laws of 1852, p. 39. To section 45 by laws of 1852, p. 39. To section 65 by laws of 1852, p. 647. To section 66 by laws of 1852, p. 471; ib. 51; laws of 1851, pp. 271, 370, 957. To section 67 by laws of 1849, p. 23. Sections 471 and 472 of the code of procedure, expressly limit the application of the code to certain statutory provisions. These are enumerated in a note to section 471, on page 444, post. In addition to these, it has been held that the code of procedure has not repealed the provisions of law, existing when that act took effect:As to the mode of commencing actions in justices’ courts p. 48, post;

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