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necessary that he should obtain the assent of the judge to enter up judgment.
Again. Under the provision of the code of 1848, sec. 2, which defined an action to be "a regular judicial proceeding, in 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," different constructions have been given upon the question whether an action can be commenced for the partition of lands. Independently of the fact, that an action for the partition of lands is expressly mentioned in several portions of the code, the Commissioners, after a very careful consideration of this definition, supposed that it was clearly comprehended within its terms. In accordance with this view, it was held by Mr. Justice Harris, in Backus v. Stilwell, 3 Howard's Pr. Rep., 318, to be clear that such an action was maintainable. A contrary opinion, however, founded upon a critical examination of the language of the code, was strongly expressed by Mr. Justice Barculo, in Traver v. Traver, 3 Howard's Pr. Rep., 351-357; which, it is stated, in a subsequent part of the same volume p. 368, was unanimously affirmed, Mr. Justice M'Coun delivering the opinion of affirmance.
The provisions as to amendments, also, which were designed by the Commissioners, to extend the power of the court, for this purpose, to every conceivable case, in furtherance of justice, have been the subject of different interpretations. The provision more especially referred to, is that contained in section 149, of the code of 1848, and is as follows:—
"The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceeding, by adding or striking out the name of any party, or a mistake in any other respect, or by inserting other allegations, material to the case, or by conforming the pleading or proceeding to the facts proved, whenever the amendment shall not change substantially the cause of action or defence."
In the case of Spalding v. Spalding, 3 Howard's Pr. Rep., 297, the facts, as set out in the complaint, constituted a cau s of action, either in trespass or replevin under the old practice, and prayed for damages instead of the possession or return of
the property. An amendment of the prayer, in this respect, was held inadmissible. In Dows v. Green, 3 Howard's Pr. Rep., 377, however, Mr. Justice Parker took a different view of the question; holding, that it being in furtherance of justice, the court had the power, under the section referred to, to allow an amendment of the complaint, by altering the prayer for relief contained in it, so as to claim the property itself, and damages for its detention, it being originally for the value of the property only; and that, although the amendment would change the form of the action, or rather, the class to which it belonged, it did not change the cause of action in the sense in which those terms are used in this section.
Other instances might be adduced, if it were necessary, of similar differences of construction. Enough, however, has been presented, to show that the application of the strict rule in this respect, applicable to statutes generally, cannot but be productive of great injustice, when made to a system, whose chief design and whose great merit, if it have any, is its attempt to make the attainment of justice the paramount object, and the use of forms mere auxiliaries, which, when they come. in conflict with the ends of justice, are to be relaxed. A careful examination of the cases already referred to, will show, moreover, that these differences of opinion result from the adoption of different tests as to the meaning of the code. The one class proceeding upon the principle of a strict statutory construction, the other based upon a liberal and benign interpretation of the provisions to which they refer.
This section, in the opinion of the Commissioners, will obviate much of the difficulty under which the courts have labored, and will render the code, instead of a rigid and unbending statute, as construed by some, a rule of procedure susceptible of easy adaptation to the purposes of justice, which it alone has in view.
The further attainment of this object is also sought by a subsequent provision of the code, sec. 42, which gives an appeal to the supreme court, from an order affecting a substantial right, made in a civil action, involving the construction of the constitution or of a provision of this code. This
provision is introduced after mature consideration, and from a conviction of its necessity. So far as it relates to questions affecting the construction of the code, the Commissioners beleive that it is important to the successful operation of the reforms already introduced, and which this report proposes further to introduce into the practice.
§ 4. No part of this code is retroactive, unless expressly so declared.
§ 5. Judicial remedies are such as are administered by the courts of justice, or by judicial officers empowered for that purpose, by the constitution and statutes of this state.
This definition was not contained in the code of 1848, or in the amended code. It is here introduced as a concise and convenient definition of judicial remedies.
§ 6. These remedies are divided into two classes: 1. Actions: and
2. Special proceedings.
Same as amended code, sec. 1.
§ 7. An action is an ordinary proceeding in a court of justice, by which one party prosecutes another, for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence.
Same as amended code, sec. 2.
§ 8. Every other remedy is a special proceeding.
Same as amended code, sec. 3.
§ 9. Actions are of two kinds:
1. Civil: and
Same as amended code, sec. 4.
§ 10. A civil action arises out of,
1. An obligation:
2. An injury.
§ 11. An obligation is a legal duty, by which one person is bound to the performance of an act towards another, and arises from,
1. The contract of the parties; or
2. The operation of law, as in the case of a statute or judgment.
§ 12. An injury is of two kinds:
1. To the person: and
2. To property.
§ 13. An injury to property consists in depriving its owner of the benefit of it, which is done by taking, withholding, deteriorating, or destroying it.
§ 14. Every other injury is an injury to the person.
§ 15. A criminal action arises out of an act or omission forbidden by law, and to which is annexed, upon conviction, either of the following punishments:
4. Removal from office: or
5. Disqualification to hold and enjoy any office of honor, trust or profit under this state.
§ 16. A civil action is prosecuted by one party against another, for the enforcement or protection of a right, or the redress or prevention of a wrong.
§ 17. A criminal action is prosecuted by the state, as a party, against a person charged with a public offence, for the punishment thereof.
The last two sections are more distinct than sections 5 and 6 of the amended code, for which they are substituted.
§ 18. When the violation of a right admits of both a civil and criminal remedy, the right to prosecute the one is not merged in the other.
Same as amended code, sec. 7. This section is taken substantially from 2 R. S. 3d ed. 390, sec. 2.