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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of jurisdiction incident to the administration of law and equity by separate tribunals, are, beyond question, entirely superseded.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 re

lief 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

simply confined to a general definition of the parties, who, under the former practice, might or might not sue, or be sued ; with a notice in detail of the different provisions of the Code in relation thereto, and of the decided cases with reference to those provisions. The ancient nomenclature of plaintiff and defendant, is expressly continued by section 70.

This chapter naturally divides itself into two separate and independent branches. First, as to parties plaintiffs, and second, as to parties defendants; which will be accordingly considered seriatim.

With reference to the plaintiffs in an action, the old equitable doctrine still prevails on the following, amongst many other subjects, which will be found fully treated of in the works before referred to.

An action upon a joint contract must be brought in the names of all the parties thereto, or in those of the survivors, if the cause of action survive; but if the contract be of a several or severable nature, any of the parties, or the representatives of any, who are in the same interest, may sue either in conjunction or severally, at their election.

Aliens in general are competent to sue; but see observations in a previous part of the work as to the jurisdiction of the federal courts.

An alien enemy, whilst he remains such, is not: nor does the statute run against him, sec. 103. A criminal, while under sentence, is in like manner disqualified from suing.

Corporations and joint-stock companies may sue or be sued by the names and under the forms prescribed in the laws authorizing their incorporation. See as to the latter, laws of 1849,

c. 258.

In cases where real estate of a deceased party is in question, the heir is the party entitled to sue as to the realty, and the executor or administrator in respect of rents become due, or damages accrued thereto, during the life of the deceased.

In all cases arising out of the personal estate of a deceased party, the executor or administrator is, of course, the proper party to sue; so also in an action to recover compensation for death by a wrongful act, under laws of 1849, c. 256.

Where an action is brought in respect of a joint wrong, each party injured must sue separately, except where the injury is one to partners, as such, or the action is for slander of title.

In all cases of agency, the principal must sue, and not the agent, unless the agent is personally interested.

The committee of a lunatic, idiot, or habitual drunkard, may sue in all cases where he is authorized by statute-see laws of 1845, c. 112, sec. 2; 2 R. S., third edition, p. 115; but, in all other cases where this authority is not expressly given by statute, the action must be brought in the name of the lunatic or idiot, by his next friend, or, it would seem, in the case of an habitual drunkard, by that party himself. See M'Killip v. M'Killip, 8 Barb. S. C. R. 552.

Before a committee can sue as such, he must obtain the authority of the court.

Lunatics, idiots, and married women must sue by their next friend, and infants by their guardians, in all cases, except those specially provided for by statute.

A husband may sue in respect of an injury to his wife, or a parent, in respect of one to his child or servant, “per quod consortiam" in the former, or, "per quod servitium, amisit,” in the latter instance.

The state is competent to sue by its proper officer, and foreign states or potentates labour under no disqualification as such. Copartners must sue jointly, except in reference to a partition, but tenants in common may sue either jointly or severally at their election.

In cases of limited partnership, under the provisions of Part II. R. S., chap. IV. title I.; 1 R. S. 763 to 768, the acting general partners, alone are the proper plaintiffs.

Receivers, sheriffs, and all other parties exercising ministerial powers under the special appointment of the courts, in order to the realization of property, or the collection of its proceeds; may sue, as such, in their own names, or in the names of the parties for whom they exercise those functions.

A plaintiff, without adequate means, may sue in formâ pauperis under the provisions of the revised statutes before referred to.

We now come to the different matters, in respect of which the Code has either altered or defined the previously existing rules upon the subject.

The first provision to be noticed is that in section 113, under which, with the exception of actions by executors or trustees as such, every action must be brought in the name of the real

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