Section 46 of Judiciary act of 1847, p. 108, post; As to amendments, pp. 188, 194, post; As to proceedings for contempts, pp. 201, 354, 444. post; As to attachments, p. 337, post; As to double costs? p. 338, post; As to attachments against foreign corporations, p. 244, post; As to attorney buying causes of action to sue thereon, p. 337, post; As to champerty and maintenance, pp. 338, post; As to collecting costs on a motion, p. 354, post. It has also been held that the code of procedure has repealed the provisions of law, existing when that act took effect: As to appeals, given by sections 5 and 10 of the judiciary act, p. 24, post; As to terms, p. 30, post; As to county courts, p. 36, post; As to courts of justices of the peace, p. 47, post; As to times for commencing actions, p. 68, post; As to exceptions for impertinence, &c., p. 154, post ; As to review of judgments in justices courts, p. 377, post ; As to double costs? p. 338, post. It will be observed that some of the sections in this edition of the code of procedure, are twice numbered, as thus: 138, [116.] while other sections are only once numbered, also that some sections are preceded with the words and figures (amended 1849), or (amended 1849-1851,) &c., while others have no such prefix, and further that some sections have the words "Existing suits" prefixed and others have not. The reason for these prefixes or the omission of them, is to give the reader at a glance the history of each section, as thus When a section is only once numbered as § 227, it indicates that it is one of the sections added in 1849. When a section is twice numbered, as § 348 [297.] it indicates: 1. That the section is one of those which existed in the code of 1848, and that in that code it was numbered as within the brackets, [ ]. When the words "Existing suits" are prefixed to a section, they indicate that the section is one of those which the provisions of the supplementary act apply to suits pending on July 1, 1848. When the word and figures (Amended 1849), or as the case may be, are prefixed, they signify that the section was amended in the year or years which the figures indicate. Those disposed to cavil at the repeated amendments to the code, should reflect on these words of Sir James Mackintosh: "There is but one way of forming a civil code, either consistent with common sense, or that ever has been practised in any country, namely, that of gradually building up the law in proportion as the facts arise which it is to regulate." (Discourse on the Study of the Laws of Nature and of Nations.) For, as says Chief Justice Gibson, (8 Ser. and Raw. 378) "A system complete in all its parts could not be struck out at a single heat by the most able lawgiver that ever lived." THE CODE OF PROCEDURE, AS AMENDED, READS AS FOLLOWS. [The figures within brackets, placed after the number of the section, are the number of the corresponding section in the code of 1848; but the number thus placed is not intended to indicate that the language of the sections is identical.] AN ACT To amend the act entitled "An act to simplify and abridge the practice, pleadings, and proceedings of the courts of this State," passed April 12, 1848. Passed April 11, 1849. The act entitled "An act to simplify and abridge the practice, pleadings, and proceedings of the courts of this State," passed April 12, 1848, is hereby amended so as to read as follows: 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, and that the distinction between legal and equitable remedies should no longer continue, and that a uniform course of proceeding, in all cases,* should be established: Therefore, The People of the State of New York, represented in Senate and Assembly, do enact as follows: § 1. [1.] Remedies.-Remedies in the courts of justice are divided into, 1. Actions. 2. Special proceedings. § 2. [2.] (Amended 1849.) Action.-An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence. The second section in the code of 1848, instead of the words in italic, had these words, "a regular judicial proceeding," and per Barculo, J., "the word regular cannot be fairly applied to statutory proceeding unknown to the common law "-Traver v. Traver, 3 Pr. R., 351, 353. But per Gridley, J., "An action given by statute may be just as regular as an action of common law origin." Myers v. Rasback, 2 Code Rep., 13-4 Pr. R., 83, 85. Myers v. Borland, ib., and per Barculo, J., "I certainly had no doubt whether a suit for partition of lands was a regular judicial proceeding,' I did intend to say that proceedings by petition for partition were not merged in the legal actions of the code." Row v. Row, 4 Pr. R., 133. *"The words in all cases,' in the last clause, evidently refer to the preceding context, and are limited to common law actions and suits in equity. This is also apparent, from the fact that the code expressly excepts all special proceedings, and numerous other statutory remedies which partake of the nature of actions. The preamble, therefore, contemplates merely the abolition of the existing forms of proceedings in actions at common law, and in suits in equity, and the adoption of one new uniform course of proceeding for both," per Barculo, J., in Traver v. Traver, 3 Pr. R., 351, 352-and by the court in Linden v. Fritz, 3 Code Rep., 164, 5 Pr. R., 188. It (the code) has abolished the distinction between legal and equitable remedies, but it has not changed the inherent difference between legal and equitable relief. See section 69 of this code and note thereto. |