? 11.-Special Terms-how called. [Act of 1868-69, Chapter 273, and Act of 1871-72, Chapter 15.] 1. Whenever it shall appear to the Governor by the certifi cate of any judge, or majority of the county commissioners, that there is such an accumulation of civil or criminal actions, in the superior court, of any county, as to require the holding of a special term for its dispatch, he shall issue an order to some one of the judges of the superior court other than the judge in the judicial district in which such county is, requiring him to hold a special term of the superior court of such county, to begin on a certain Monday, not to interfere with any of the regular terms of the courts of his district. The judge shall attend and hold such court. 2. Whenever the Governor shall call a special term of the superior court for any county, he shall notify the chairman of the county commissioners of the county of such call, and such chairman shall take immediate steps to cause twenty-four, or, if a grand jury be needed, thirty-eight, qualified persons, to be drawn and summoned as jurors for said term; and, also to advertise said term at the Court House and at one public place in every township in his county, or by publication of at least two weeks in some newspaper published in his county, in lieu of such township advertisement. 3. The special terms of the superior courts held in pursuance of this chapter shall have all the jurisdiction and powers that regular terms of the superior courts have. 4. The said terms shall last until all the business of the court shall be disposed of. 5. The clerk shall give the judge a certificate of attendance for the number of days occupied by the court, and the judge shall thereupon be entitled to receive from the commissioners of the county in which the court is held, his expenses at the rate of one hundred dollars per week, as his compensation for holding said term. 6. The judge, after each term, shall report to the Secretary of State, according to the forms prescribed by law, or which may be prescribed by the Secretary. (1) The number and kinds of criminal actions which were for trial. (2) The number actually tried. (3) The number of civil actions which were for trial. (4) The number actually tried, and whether the cases were continued at the instance of one or both of the parties, or from what other cause. 7. The clerk of the superior court shall report the proceedings of special terms to the Secretary of State as he is, or may be required to report the proceedings of regular terms. 8. Subpoenas may issue returnable on any day of any special term. 9. There shall be no grand jury at any special term, unless the same shall be ordered by the Governor. 11a.-Rotation of Judges. [Chapter 27, Acts of 1876-7.] The judges of the superior courts shall ride the circuits successively, commencing at the first district according to the following order and arrangement: The judge of the twelfth district shall ride the spring circuit for the year one thousand eight hundred and seventy-seven, of the first district; and successively thereafter the various districts in the order of their numbers in rotation. 2. The judge of the first district shall ride the spring circuit for the year one thousand eight hundred and seventyseven, of the second district; and successively thereafter he shall ride the circuits of the several districts in the order of their numbers in rotation. 3. The judge of the second district shall ride the spring circuit for the year one thousand eight hundred and seventyseven, of the third district; and successively thereafter he shall ride the circuits of the several districts in the order of their numbers in rotation. 4. The judge of the third district shall ride the spring circuit for the year one thousand eight hundred and seventyseven, of the fourth district; and successively thereafter he shall ride the circuits of the several districts in the order of their numbers in rotation. 5. The judge of the fourth district shall ride the spring circuit for the year one thousand eight hundred and seventyseven, of the fifth district; and successively thereafter he shall ride the circuits of the several districts in the order of their numbers in rotation. 6. The judge of the fifth district shall ride the spring circuit for the year one thousand eight hundred and seventyseven, of the sixth district; and successively thereafter he shall ride the circuits of the several districts in the order of their numbers in rotation. 7. The judge of the sixth district shall ride the spring circuit for the year one thousand eight hundred and seventyseven, of the seventh district; and successively thereafter he shall ride the circuits of the several districts in the order of their numbers in rotation. The judge of the seventh district shall ride the spring circuit for the year one thousand eight hundred and seventyseven, of the eighth district; and successively thereafter he shall ride the circuits of the several districts in the order of their numbers in rotation. 9. The judge of the eighth district shall ride the spring circuit for the year one thousand eight hundred and seventyseven, of the ninth district; and successively thereafter he shall ride the circuits of the several districts in the order of their numbers in rotation. 10. The judge of the ninth district shall ride the spring circuit for the year one thousand eight hundred and seventyseven, of the tenth district; and successively thereafter he shall ride the circuits of the several districts in their numerical order in rotation. 11. The judge of the tenth district shall ride the spring circuit for the year one thousand eight hundred and seventyseven, of the eleventh district; and successively thereafter he shall ride the circuits of the several districts in their numerical order in rotation. 12. The judge of the eleventh district shall ride the spring circuit for the year one thousand eight hundred and seventyseven, of the twelfth [district]; and successively thereafter he shall ride the circuits of the several districts in their numerical order in rotation. 13. The judges shall cause a notification of the ridings to be published in some newspaper by the first of January and the first of July preceding each circuit: Provided, that the notice for January, one thousand eight hundred and seventyseven, shall be made within two days after the ratification of this act by the Secretary of State. 14. No judge shall ride the same circuit twice in succession; nor shall any judge exchange the riding of any district for the district in which he resides, and for which he was elected, but with these two exceptions, the judges may exchange with each other for any courts in their circuits, and, with the consent of the Governor of the State, may exchange their entire circuits: Provided, that no judge shall hold the courts in the same district oftener than once in four years. TITLE III. GENERAL PROVISIONS. SEC. 12. Distinction between actions | SEC. 14. Actions on judgments, when at law and suits in equity, and the forms thereof, abol- 13. Parties designated plaintiff and defendant. they may be brought. 15. Feigned issues abolished. 12-Distinctions between Actions at Law and Suits in Equity abolished-Civil Action prescribed. "The distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished; and there shall be, in this a "The fundamental principles of the Code are (1.) The abolition of the distinction between suit sin equity and actions at law, and the distinctions between legal and equitable procedure, so far as such amalgamation is possible with the judicial institutions which have been retained; (2.) The abolition of all common law forms of action and the establishment of one ordinary, universal means by which rights are maintained and duties enforced in a "civil action;" (3.) The application to this civil action, of the familiar equitable, rather than legal rules, methods and principles." Pomeroy's Remedies and Rem. Rights, § 28 et seq. State, hereafter, but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action."a (Const., Art. IV, Sec. 1.) The abolition of the distinction between actions at law and suits in equity and the forms of such actions and suits, and the general doctrine as to the effect of such abolition, is discussed by the Court at length in the following cases: Parsley v. Nicholson, 65–207; Garrett v. Trotter, 65-430; Oates v. Gray, 66-442; Froelich v. So. Ex. Co., 67—2; Moore v. Edmiston, 70-510; Belmont . The Auditor, 71-260; Bitting v. Thaxton, 72—541.b a For a discussion of the term "Civil Action," and the cases embraced by it, see 6, ante, and the cases there cited, and note. b The abolition of that peculiar antinomy, law and equity, is the central idea of the Reformed Procedure. That it ever had any foundation in reason no one can even pretend. It was the result of accident, and as absurd in its primary idea, as the distinctions between the different actions at law or the feigned issues by which their defects were sought to be remedied or evaded by the courts. Logically, there is no reason why the rights known as equitable should be administered in a different forum or under different forms from those denominated legal. Why a suitor should be denied a right in one court and allowed it in another upon the same state of facts, is susceptible of no more sensible explanation than the mere statement that one was a court of law and the other a court of equity. This absurdity is susceptible of no better exemplification than the fact that no human subtlety has been able to eliminate a definition of equity, as the term has hitherto been used in our legal nomenclature. Mr. Story, in his Equity Jurisprudence, after having carefully considered all the previous attempts and disclosed the defects of each, concludes that no more accurate one can be given than that "an equitable right is one which may be enforced in a Court of Equity!" As a definition this is about as satisfactory as to say that an American citizen is a citizen of America. As a practical fact, however, the abolition of these distinctions has given rise to many nice and difficult questions. Fortunately for the profession and the future developement of the Code in this State, our Supreme Court have not indulged in the finespun theories as to the effect and intention of this provision, which have prevailed in other States immediately after the adoption of the reformed procedure. While manifesting the fullest purpose to carry out its provisions in their true spirit, they have not been fruitful in general treatises upon it. There are some questions which have provoked very much discussion in other States, which have hardly been mooted here, either at the bar or upon the bench. The discussions in regard to the forms of actions and the abolition of distinctions between them are few and somewhat meager in our Reports. Perhaps one reason of this may be the early announced determination of the Court to administer the Code strictly according to its spirit and intent as their own reason and judgment might dictate, without regarding the decisions of other States as authority in its construction. In nearly all respects their general views have been in striking harmony, however, with what has been established as correct, after much variance and discussion, in other States. |