ized and directed to receive all orders on them for such printing, in payment of taxes or otherwise, as county orders issued for other purposes. SEO. 5. This act shall take effect and be in force from and after its passage. Approved October 9, 1856. CHAPTER 120. Published, in Supplement, January 5. 'An Act to simplify and abridge the Practice, Pleadings and Proceedings of the Courts of this State. WHEREAS, it is expedient that the present forms of actions and pleadings in cases at common law should be abolished; that the distinction between legal and equitable remedies should no longer continue, and that an uniform course of proceeding, in all cases, should be established: Therefore, The people of the State of Wisconsin, represented in Senate and Assembly, do enact as follows: SECTION 1. Remedies in the courts of justice are di- Division of vided into: 1. Actions: 2. Special proceedings. remedies. SEC. 2. An action is an ordinary proceeding in a court of Definition of justice, by which a party prosecutes another party for the an action. enforcement or protection of a right, the redress or prevention of a wrong, or the prevention of a public offence. Definition of SEC. 3. Every other remedy is a special proceeding. SEC. 4. Actions are of two kinds. 1. Civil: 2. Criminal: a special proceeding. Division of actions. SEC. 5. A criminal action is prosecuted by the people Definition of of the state, as a party against a person charged with public offence, for the punishment thereof. SEO. 6. Every other is a civil action. a criminal actions. Definition of a civil action. Civil and crim SEO. 7. Where the violation of a right admits of both a inal remedies civil and criminal remedy, the right to prosecute the one not merged. is not merged in the other. To what ac SEO. 8. This act relates to civil actions in the courts of tions this act this state commenced after the tenth day of December eighteen hundred and fifty six, except where otherwise provided herein. relates. Jurisdiction of justice not charged. Rules of pleading. Pleadings. Pleadings how put in. Complaints. Answer. Pleadings what to con tain. Demurrer. Justice Courts. SEC. 9. The courts of justice of the peace shall continue to exercise the jurisdicion now vested in them respectively, and the proceedings in such courts shall be as now prescribed by law, except as otherwise provided by this act. SEO. 10. The following rules of pleading and proceeding shall be observed in the courts of justice of the peace: 1. The pleadings in these cases are; 2. The pleadings may be oral or in writing; if oral, the substance shall be entered by the justice in his docket; if in writing, they shall be filed by him, and a reference to them be made in the docket. 3. The complaint shall state in a plain and direct manner, the facts constituting the cause of action. 4. The answer may contain a denial of the complaint, or of any part thereof, and also notice in a plain and di rect manner of any facts constituting a defence. 5. Pleadings are not required to be in any particular form, but must be such as to enable a person of common understanding to know what is intended. 6. Either party may demur to a pleading of his adver sary, or any part thereof, where it is not sufficiently ex licit to enable him to understand it, or it contain no cause f action or defense, although it be taken as true. 7. If the court deem the objection well founded, it shall Proceedings order the pleading to be amended, and if the party refuse on demurrer to amend the defective pleading shall be disregarded. 8. prove his case In case a defendant does not appear and answer, the Plaintiff to plaintiff cannot recover without proving his case, except if defendant do in cases provided by law. 9. not appear. count of in In an action or defence founded upon an account or Proceedings in an instrument for the payment of money only, it shall be action on acsufficient for a party to deliver the account or instrument strument for to the court and to state that there is due to him from the the payment adverse party a specified sum which he claims to recover of money only or set off. 10. garded. A variance between the proof on the trial and the Variance allegation in a pleading shall be disregarded as immaterial, when disre unless the court shall be satisfied that the adverse party has been misled to his prejudice thereby. 11. The pleadings may be amended at any time before Amending the trial or during the trial or upon appeal, when, by such pleadings, amendment, substantial justice will be promoted. If the amendment be made after the joining of the issue, and it be made to appear to the satisfaction of the court by oath that an adjournment is necessary to the adverse party, in consequence of such amendment an adjournment shall be granted. The court may, also, in its discretion, require as a condition of an amendment, the payment of costs to the adverse party, to be fixed by the court; but no amendment shall be allowed after a witness is sworn on a trial, when an adjournment thereby will be made necessary. 12. and returnable Execution may be issued on a judgment heretofore Execution or hereafter rendered in a justice court, at any time within when issuable two years after the rendition thereof, and shall be returnable thirty days from the date of the same. ment docketed 13. Execution on If the judgment be docketed with the clerk of the justices judg- circuit court, the execution shall be issued by him to the sheriff of the county and have the same effect, and be executed in the same manner as other executions and judg ments of the circnit court. Requiring party to exhibit his account. Certain provi 14. The court may at the joining of isssue, require either party, at the request of the other, at that or some other specified time, to exhibit his account or demand, or state the nature thereof as far forth as may be in his power, and in case of his default, preclude him from giving evidence of such parts thereof as shall not have been so exhibited or stated. 15. The provisions of this act respecting forms of acsions made ap- tions, parties to actions, and the examination of parties plicable to and witnesses shall apply to courts of justices of the peace. these courts. Distinction be at law and SEC. 11. The distinction between actions at law and tween actions suits in equity, and the forms of all such actions and suits suits in equity heretofore existing, are abolished; and there shall be in and form of all this state, hereafter, but one form of action for the enforceand suits abol- ment or protection of private rights and the redress of private wrongs, which shall be denominated a civil ac tion. such actions ished. Parties to an action how designated. Actions on judgment when and how brought. SEO. 12. In such action, the party complaining, shall be known as the plaintiff, and the adverse party as the defendant. SEC. 13. No action shall be brought upon a judgment ren dered in any court of this state, except a court of the jus tice of the peace, between the same parties, without leave of the court, for good cause shown on notice to the adverse party; and no action on a judgment rendered by a justice of the peace shall be brought in the same county within two years after its rendition, except in cases of his death, resignation, incapacity to act, or removal from the county, or that the process was not personally served on the defendant, or on all the defendants, or in case of the death of some of the parties, or where the docket or record of such judgment is or shall have been lost or des troyed. SEC. 14. Feigned issues are abolished, and instead thereFeigned issues f, in the cases where the power now exists to order a abolished and eigned issue, or when a question of fact, not put in issue order for trial y the pleadings, is to be tried by a jury. An order for substituted. he trial may be made, stating distinctly and plainly the question of fact to be tried, and such [order] shall be the -y nly authority necessary for a new trial. the name of SEC. 15. Every action must be prosecuted in the name Action to be in of the real party in interest, except as otherwise provided the real party in section seventeen; but this section shall not be deemed in interest. to authorize the assignment of a thing in action not arising out of a contract. tion not to pre SEC. 16. In case of an assignment of a thing in action, Assignment of the action of the assignee shall be without prejudice to a thing in acany set off or other defence existing at the time of or judice a debefore notice of the assignment, but this section shall not fence. apply to a negotiable promissory note or bill of exchange transferred in good faith, and upon good consideration before due. sue without interested. SEC. 17. An executor or administrator, a trustee of an Executor or express trust, or a person expressly authorized by statute, trustee may may sue without joining with him the person for whose the persons benefit the action is prosecuted; a trustee of an express beneficially trust, within the meaning of this section, shall be construed to include a person with whom or in whose name a contract is made for the benefit of another. SEO. 18. When a married woman is a party, her husband must be joined with her, except that: 1. When the action concerns her seperate property, she husband to be, may sue alone. When a mar ried woman is party the joined. 2. When the action is between herself and husband, Except. she may sue, or be sued alone. SEO. 19. But where the husband cannot be joined with When he canher, as herein provided, she shall prosecute and defend not, must sue by next friend. by her next friend. dian. SEO. 20. When an infant is a party, he must appear by Infant to aphis next friend or guardian as now provided by law. pear by guarSEC. 21. All persons having an interest in the subject who may be of the action and in obtaining the relief demanded, may joined as plainbe joined as plaintiffs, except as otherwise provided in tiffs. this title. fendants. SEC. 22. Any person may be made a defendant who Who may be has or claims an interest in the controversy, adverse to the joined as deplaintiff, or who is a necessary party to a complete deter mination or settlement of the questions involved therein. |