8.-Proceedings by attachment.

The provisions of this act shall not apply to proceedings by attachment.

Hyman v. Devereux, 63-624; Greenlee v. Greenlee, 63-593.

Notwithstanding the provisions of its eleventh section, the Act of 1868-69, Chapter 76, is to be construed as requiring the summons in cases where the defendant is a non-resident, to be returned to the term of the court, though that section requires the warrant of attachment to be returned before the clerk. Backalan v. Littlefied, 64-233.

Where a summons was made returnable, and the complaint, and answer, in chief, were filed, before the clerk, (July, 1869,) and he returned the case to the next term, the docket of which showed the names of the respective counsel marked to such case: Held, that, at Spring Term, 1870, it was competent for the judge to amend the summons by making it returnable to the term, in accordance with the Act of 1868-'69, chapter 76. Thomas . Womack, 64-657.

The ninth section of the Act of 1868-'69, (repealed by chapter 28 of the Acts of 1869-'70), held to have been unconstitutional. Latham . Whitehurst, 69–33.

{9.-Exemptions from repeal.

Nothing in this act shall operate to repeal the provisions of the Code of Civil Procedure, which allow defendants to be arrested and held to bail in certain cases.

10.-Act-when in force.

[Amended by Acts of 1872-73, Chapter 14.]

That this act shall be in force until otherwise provided by law.

Since the passage of the Act of 1870-'71, chapter 42, the clerk of the Supreme Court of one county, cannot issue a summons returnable in the Superior Court of another. Howerton v. Tate, 66-431.

The Act of Assembly, 1870-71, chapter 42, by which executions issued or judgments in civil actions, are required to be tested as of the term next before the day on which they are issued, is merely directory, and its omission does not vitiate the process. Bryan v. Hubbs, 69-423,

Quære. How are judgments by default, now allowed by law, and the amounts thereof ascertained? Is it in the manner prescribed in the 217th section, ante, or is it by the old mode of a jury and a writ of enquiry? Sutton v. McMillan, 72–102.

Where a summons was issued within ten days before the term of the Superior Court to which it was returnable: Held, that the action should have been dismissed on the motion of the defendant, and that it was error to order an alias returnable to the next ensuing term. Folk . Howard, 72-527.

PART SECOND.

SPECIAL PROCEEDINGS.

Chapter I. Procedure in special proceedings, generally.

Chapter II. Proceedings by a widow to recover a year's support.

Chapter III. Proceedings to obtain dower.

Chapter IV. Proceedings for the partition of property.

Chapter V. Proceedings in relation to mills.

Chapter VI. Assignment of homestead on petition of owner.
Chapter VII. Mandamus.

1.-When all the parties ask the same relief.

If all the parties in interest join in the proceeding and ask the same relief, the commencement of the suit shall be by petition setting forth the facts entitling the petitioners to relief, and the nature of the relief demanded.

A demurrer for dower is a special proceeding returnable before the clerk. Felton v. Elliott, 66–195.

2.-In what cases the clerk may hear summarily.

In such cases, if all persons to be affected by the decree, or their attorney, shall have signed the petition, and they be of full age, the clerk of the Superior Court shall have power to hear the petitions summarily, and to decide the same if either or any of the petitioners shall be residing out

a As to the distinction between civil actions and special proceedings, and what falls under each class, see 6 of the Code, and a full discussion in the note thereto.

of the State, an authority from him or them, to the attor ney, in writing, must be filed with the clerk, before he shall make any order or decree to prejudice their rights.

13.-If any of the petitioners are infants-judge must revise order.

If any of the petitioners be an infant, or the guardian of an infant acting for him, no order or judgment of the clerk, affecting the merits of the case, and capable of being prejudicial to the infant shall be valid, unless submitted to, and approved by the judge of the court in or out of term.

{4.-Special proceedings against adverse parties.

When special proceedings arc had against adverse parties, they shall be commenced as is prescribed for civil answers.

The appointment of a trustee by a Judge of Probate, in cases where the former trustee has died, removed from the county, or became incompetent, cannot be done on an ex parte motion or petition. The application for such appointment is in the nature of a civil action, and all persons interested must be made parties, and have full time and opportunity to set up their respective claims. Guion . Melvin, 69-242.

A proceeding to make a judgment nisi absolute, must be commenced by summons. Thompson v. Berry, 64-81.

Consult, in connection with this case, McDowell v. Asbury, 66–444, cited under § 345 of the Code.

A proceeding by a motion supported by affidavits after a notice to the opposite party, to have satisfaction of a judgment entered of record upon the ground that it has been paid since its rendition, is the appropriate remedy in such a case, but is neither a special proceeding nor a civil action. It is only a motion in a cause still pending. Foreman v. Bibb, 65–128.

(5.-Every order, &c., by judge to be signed by him.

Every order or judgment, whether in a civil action or a u di special proceeding, which is required to be made by a judge, 72of the Superior Court, either in or out of term, shall be j+147~ authenticated by his signature.

{6.—What parts of Code of Civil Procedure applicable.

Both in respect to proceedings on petitions, in which all the parties in interest join as petitioners, and to special proceedings between adverse parties, the following portions of the Code of Civil Procedure, except as modified by special provisions in particular proceedings, shall be applicable as