See further provisions on this subject in section 375 of this code.

In Mechanics' and Farmers' Bank v. Rider, 5 Pr. R., 401, Mr. Justice Parker says, p. 413. Both defendants (jointly liable) were served, and the contract being joint and not several also, the plaintiff would not have been entitled to judgment against either of the defendants if the action had been commenced against one of the defendants alone. He cannot therefore take judgment against one, when they are sued together.

The other statutory enactments on this subject still in force are 2 R. S., 3d ed. p. 474, and Laws of 1835, p. 248, s. 2.

By the revised statutes it is enacted:

"§ 1. In actions against two or more persons jointly indebted upon any joint obligation, contract or liability, if the process issued against all the defendants shall have been duly served upon either of them, the defendant so served shall answer to the plaintiff; and in such case, the judgment, if rendered in favor of the plaintiff, shall be against all the defendants in the same manner as if all had been served with process.

§ 2. Such judgment shall be conclusive evidence of the liability of the defendant who was personally served with process in the suit, or who appeared therein; but against every other defendant, it shall be evidence only of the extent of the plaintiff's demand, after the liability of such defendant shall have been established by other evidence.

3. Execution upon every such judgment shall be issued in form against all the defendants, but the attorney issuing the same shall endorse thereon the names of such of the defendants as were not served with the process by which the action was commenced, and shall direct such execution to be served, as provided in the next

section.

§ 4. Such execution shall not be served upon the person of any defendant whose name is so endorsed thereon; nor shall it be levied on the sole property of any such defendant; but it may be collected of the personal property of any such defendant, owned by him as a partner with the other defendants taken, or with any of them.

5. Where an action against two or more persons upon any joint obligation, contract or liability, shall be commenced by the filing and service of a declaration, and it shall appear by the certificate of a sheriff, or by due proof, that the same has been served upon either of such persons, the defendant so served shall answer to the plaintiff, and the judgment in such action, if rendered in favor of the plaintiff, shall be against all the defendants in the same manner as if all had been served with such declaration; which judgment shall have the like effect, and execution thereon shall be issued as if process against such defendants had been served on one of them. By laws of 1835, cap. 211, regulating actions on bills of exchange and promissory notes, it is enacted:

"2. It shall not be necessary for the plaintiff (in an action against the several parties to a bill or note) to include in the same record a judgment against all the parties to said bill or note, but judgment may be entered against any of the parties to said bill or note whenever the plaintiff would be entitled to the same, if the suit had been commenced against such parties only. And if the trial or hearing of the cause be put off by any of the parties to the said bill or note; or if a default shall have been obtained against part of the defendants, the plaintiff may proceed to the trial or hearing against the other parties in the same manner as if the suit had been commenced against the other parties only, and the action shall thereby be severed."

This section of this code (sec. 136) appears to go further than the revised statutes, and to provide as well for one of several joint debtors, as against one of several defendants severally liable.

Under the provisions of the revised statutes it was held, that, in actions against two or more jointly indebted upon any joint obligation or contract, where one or some only of the defendants had been served, the judgment if for the plaintiff, must be against all the defendants. 5 Hill, 37. 10 Wend. 630. 6 ib. 500. Even if the defendant not served be an infant. 15 Wend. 64. 11 ib. 612. The judgment so obtained was conclusive evidence of the liability of the defendant or defendants served, or who appeared, but as against the defendant or defendants not served or who did not appear, the judgment was evidence only of the extent of the liability of such defendant or defendants, after their liability had been established by other evidence. An action of debt might be brought on such judgment against such defendant or defend

ants.

And in such action the plaintiff on the plea of nul tiel record, being interposed, had to prove the defendant's liability. 6 Wend. 206, 293, 23. 14 ib. 221.. As to the execution on a judgment under the above provisions of the revised statutes. See notes to section 289 and 291 of this code.

§ 137. [115.] When service complete.-In the cases mentioned in section 135, the service of the summons shall be deemed complete at the expiration of the time prescribed by the order for publication.

See Mc Ewen's Ex'r v. Public Administrator, 3 Code Rep., 139, 176.

§ 138. [116.] (Amended.)—Proof of service.-Proof of the service of summons and of the complaint or notice, if any accompanying the same, must be as follows:

1. If served by the sheriff, his certificate thereof; or, 2. If by any other person, his affidavit thereof; or,

3. In case of publication, the affidavit of the printer, or his foreman, or principal clerk, showing the same; and an affidavit of a deposit of a copy of the summons in the post-office, as required by law, if the same shall have been deposited; or, 4. The written admission of the defendant.

In case of service, otherwise than by publication, the certificate, affidavit or admission, must state the time and place of the service,

The amendments in this section are the words in italic. The words "as required by law," being new, and the words “service otherwise than by publication," being substituted for the words "in case of actual service." By rule 90 of the rules of August, 1849, it is provided" that where the service of the summons, and of the complaint or notice, if any, accompanying the same, shall be made by any other person than the sheriff, it shall be necessary for such person to state in his affidavit of service, when and at what particular place he served the same, and that he knew the person served to be the person mentioned and described in the summons as defendant therein, and also to state in his affidavit whether he left with the defendant such copy as well as delivered it to him."

Where the proof of service is the sheriff's certificate, he should state or refer to the name of the cause, and that the summons served by him was in that cause, for where a sheriff's certificate stated that he served on the defendants a copy of a summons and complaint, but it did not appear that it was the summons and complaint in the action then before the court, it was held not sufficient proof of service. Litchfield v. Burwell, 5 Pr. R., 341, I Code Rep., N. S., 42.

Where the proof of service is an admission by the defendant, the admission must be verified and identified, so as to satisfy the court that the admission is indeed signed by the defendant, or with his assent. Thus per Sill. J. "The service upon the defendants is sought to be proved by an admission, purporting to be signed by them, but there is nothing showing that the signatures are those of the defendants, or were placed there by their direction. The court takes judicial notice of the signatures of its officers because they are such, but there is no legal fiction by which the court is presumed to know the signature of a party defendant who has not appeared in the cause. 2 Hill, 369. Litchfield v. Burwell, 5 Pr. R., 341, 1 Code Rep., N. S., 42.

The sheriff's fee for serving and returning a summons, with certificate of serviceis 37 cents. Gallagher v. Egan, 2 Sand. S. C. R., 742, 3 Code Rep., 203.

1

§ 139. (Amended.)—When jurisdiction acquired.-From the time of the service of the summons in a civil action, or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance of a defendant is equivalent to personal service of the summons upon him.

The words in italic are new. The code of 1848 had no provision corresponding to that contained in this section.

Where the service of the summons is by publication, the action is not commenced until the expiration of the time prescribed for publication. See section 137, and McEwen's Ex'rs v. Public Administrator. 3 Code Rep., 139, 176.

But where an attachment had been issued against a defendant, and an order made to serve the summons by publication, and before the summons was complete, the defendant died, the court held, that although the action was not commenced within section 137, or section 99, yet the plaintiff had, by virtue of the attachment and this section, acquired a provisional lien, on the defendant's property, which was a right secured to him by this section. Ib.

TITLE VI.

Of the pleadings in civil actions.

CHAPTER I. The complaint.

II. The demurrer.

III. The answer.

IV. The reply.

V. General rules of pleading.
VI. Mistakes and amendments.

CHAPTER I.

The Complaint.

SECTION 140. Forms of pleading abolished.
141. Complaint.

142. Complaint, what to contain.

$140. [118.] Forms of pleading.-All the forms of pleading heretofore existing, inconsistent with the provisions of this act, are abolished; and hereafter, the forms of pleadings in civil actions in courts of record, and the rules by which the sufficiency of the pleadings is to be determined, are modified as prescribed by this act.

This section supplies the place of section 118 in the code of 1848. That section enacted "All the forms of pleading heretofore existing are abolished, and hereafter

the forms of pleading in civil actions, and the rules by which the sufficiency of the pleadings is to be determined, shall be those which are prescribed by this act."

Under the code of 1848 it was properly held, that that code abolished all former rules of pleading, and that the sufficiency of a pleading was to be tested by the rules prescribed in the code alone. Royce v. Brown, 3 Pr. R., 390. The code of 1849, however, receded greatly from the very sweeping enactment in the code of 1848, and, instead of all previously existing forms, abolished only all that were inconsistent with that act, and instead of making the sufficiency of a pleading dependent on the provisions of that act, it left them subject to the then existing rules of pleading, and it left all the then existing rules of pleading in full force, except as modified by that act. But when the code of 1848 became law, and when the code of 1849 by relation back went into effect, there existed in this State two systems of pleading, more alike, probably, in their main features and leading principles than is generally supposed, but still two separate and distinct systems; and the practitioner was met on the very threshold by the difficulty as to which of these systems was to be rejected, and which retained, or whether both were to be retained, and how they were to be amalgamated. The subject was very ably reviewed by Selden, J., in Knowles v. Gee, 3 Code Rep., 31, in which case the learned judge commented on the point as follows:-The question presented is, how far the legislature by its recent reforms of the practice and pleadings in courts of this State, intended to abrogate the rules heretofore applied to pleadings in the courts of common law, and to substitute those which prevailed in the court of chancery.

No more important question than this, in my judgment, can arise under our new system of legal proceedings, and none, the settlement of which will have a more material influence upon the convenient administration of justice in this State, while the present system continues.

It cannot be denied that the legislature, by adopting the forms of pleading heretofore in use in the courts of chancery, have given unequivocal evidence of a preference for those forms over those of the common law.

On the other hand, the abolition of the only court in which those forms were used, the transfer of its jurisdiction to the courts of common law, and the retaining of the forms and modes of trial peculiar to the latter, forbid the conclusion, that it was intended to subvert the entire system of rules which prevailed in the cominon law courts, and to substitute those of the obnoxious court of chancery.

In continuing two systems of jurisprudence, therefore, administered under different forms, by different tribunals, and resolving them into one, it became indispensable to borrow something from each; and the object of the legislature seems to have been, to select from both that which was most valuable-rejecting in each those portions which experience had proved to be productive of inconvenience. It is the duty of courts to aid in accomplishing this design, and in doing so they must necessarily look to the evils which existed, as well as to the means resorted to for their removal. The adoption of the forms of chancery pleadings, though not the necessary, was the natural consequence of adopting that principle in chancery jurisprudence, which recognized only one form of action for all cases.

Many of the technical rules of the common law system of pleading may well have been considered as originating in, and connected with those distinctions between the different forms of action which were peculiar to that law. There are, however, some of those rules which are so well adapted to accomplish the end of all pleading, that I should find it difficult to persuade myself that the legislature could have intended to abrogate them.

The object of judicial proceedings is to ascertain and decide the point in dispute; and it is essential to the termination of every legal contest, that it be evolved and distinctly presented for decision. This indispensable end of judicial pleading was attained in different modes by the civil and common law. The rules of the latter were designed to develope and present the precise point in dispute, upon the record itself, without requiring any action on the part of the court for that purpose. Hence the parties were required to plead until their respective allegations terminated in a single material issue, either of law or of fact-the decision of which would dispose of the case. The result of this process was perfectly simple; but the system of rules by which it was attained, was necessarily artificial and complex. If always skilfully applied, they would be sure to produce the end desired; but it would sometimes happen, through ignorance or mistake, an issue would be formed, or a point presented, not in

volving the real merits of the controversy, and a decision be thus produced contrary to the real justice and equity of the case. This was the sole vice of the system, but it was sufficient to create strong feeling against what is termed, special pleading.

Two remedies were applied. One was, a liberal allowance of amendments and repleaders; the other, general pleadings, under which parties were allowed the widest scope, in the proof of facts not appearing upon the record. The latter expedient has had many advocates, but the evils to which it tended were so obvious, that it is now generally condemned, and is repudiated by the code.

By the civil law the parties were not required to plead to issue, but were permitted to spread all the facts in detail constituting their cause of action or defence, at large upon the record; questions of law were not necessarilly separated from questions of fact, but the whole case was presented in gross to the court for its determination.

This system, of course, avoided the evil which attended that of the common law, of sometimes causing the case to turn upon some false, immaterial, or technical issue; but it had other defects peculiar to itself. It threw upon the courts the labor of methodising the complex allegations of the parties, and developing the real points in dispute.

There was an additional reason, too, why this system was not adopted in the cmmon law courts of England. The determination of questions of law and of fact belonging to different tribunals, it was, of course, extremely convenient, if not indispensable, that they should be separated upon the record before the case was presented for trial. Besides, as little time could be afforded at nisi prius, to evolve from a complicated mass of facts, the points about which alone the parties differed, the rules requiring all issues to be certain and single, would be sure to commend themselves to all who were in any way concerned in the disposition of such cases.

On the other hand, when the court of chancery took its rise, and began to take cognizance of judicial contests, the mode of trial by jury not appertaining to that court, the inconveniences resulting from mingling questions of law and of fact, to be referred to different tribunals, was not felt by it. As the chancellor could take all the time requisite for the fullest examination, and as he assumed originally to eschew the strict and technical rules of the common law, and to proceed upon the broad equities of the case, he naturally encouraged the presentment of the facts at large. Hence the adoption of the forms of the civil law. Now, no one will dispute that to disencumber the record of all extraneous matters, and of every thing irrelevant and immaterial, and thus present to the judicial mind the naked point to be passed upon, is a highly desirable object; nor will it be denied by any one really acquainted with the subject, that the system of common law pleading was admirably adapted to accomplish that end.

But while it is conceded, that common law pleading, as a system, is supplanted, it is unnecessary to admit that every vestige of its valuable rules has been swept away. It has been my object in this brief and imperfect sketch of the distinguishing characteristics of the two systems, so to exhibit the value of some of those rules, as to show that wisdom requires them to be retained, and the legislature must so have intended, so far as could be done cousistently with the main object in view, to wit: that of so simplifying the mode of pleading, that it could not be perverted by chicanery and cunning to purposes of injustice. The code itself bears evidence of a due appreciation by the legislature of the importance of certainty and precision in the statement of a charge or a defence, as well as of a separation of various defences, so that each shall be singly presented (See sections 150 and 160,) adopting in these respects the principles of the common law, and enforcing them in a summary manner by motion instead of the more dilatory and expensive proceeding by demurrer.

Upon what, then, rests the position that it was the intention of the legislature, in its recent reforms, to substitute entire chancery pleadings for that of the common law? The code has nowhere so said; it is a mere inference from the adoption, in substance, of the forms or rather names of the pleadings in the court of chancery. This circumstance, however, is more than counterbalanced by the destruction of the court itself, together with the transfer of its jurisdiction; and by the consideration that the complex issues presented by chancery pleadings, are incompatible with trials by jury. In a subsequent case, Rochester City Bank v. Suydam, 5 Pr. R., 216, the same