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The order being thus entered, and a certified copy obtained, a copy of the latter should be served on the opposite party, with a formal notice endorsed, to the effect that it is a copy of the order so made. The same is the case with reference to orders of course, not entered with the clerk, copies of which should be served in like manner. This should be done at once, and should never be neglected or deferred, for the obvious reason that the time within which an appeal may be taken by the adverse party, runs, under sec. 332, from the date of that service only, without reference to the date of making the order; and, if that precaution be neglected, the time for lodging such an appeal will therefore be indefinitely postponed.

In cases where a motion has been granted, on payment of costs, or on the performance of any condition, or, when the order requires such payment or performance, the party whose duty it is to comply therewith, is, by rule 38 of the supreme court, allowed twenty days for that purpose, unless otherwise directed in the order. Where costs are to be taxed, the party is, by the same rule, allowed fifteen days for their payment, after taxation upon notice.

The enforcement of orders will be hereafter considered, under the heads of special proceedings, and execution.

The questions as to the review or vacating of orders, will be likewise fully considered, under the head of appeals. Ex parte orders may be vacated or modified, without notice, by the judge who made them; or by the same, or any other judge, on notice in the usual manner. (See Code, sec. 324.) Orders of any nature may be set aside for irregularity, on a regular application. An order may also be revoked, under rule 87, if unduly obtained, by means of a second application, on the same state of facts on which a previous motion has been refused. Orders made upon notice are, in the last place, reviewable by means of an appeal, under the provisions of the Code for that purpose, as considered in a subsequent division of the work.

BOOK V.

OF PLEADING, GENERALLY CONSIDERED.

CHAPTER I.

OF THE ESSENTIAL REQUISITES OF PLEADING.

Or all the radical and searching changes effected by the Code, perhaps the most so, is that, in the matter of pleading, the whole fabric of which, in actions of strictly common law cognizance, has been swept away in toto, and supplanted by a new system, borrowing its nomenclature, and, in some respects, its general forms, from the former equity practice; but yet, in many respects, independent of the rules by which that practice was governed.

The preamble of the Code lays down this intention on the part of the Legislature, in the widest terms, as follows:

"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."

The immediate controlling agent, by which this change is effected, is section 69, running as follows:

§ 69. 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 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.

By section 140, also, the following provision is made, the phraseology being rendered still stronger and more definite, on the recent amendments.

§ 140. All the forms of pleading heretofore existing, are abolished; and, hereafter, the forms of pleading in civil actions, in courts of record, and the rules by which the sufficiency of the pleadings are to be determined, are those prescribed by this act.

In Giles v. Lyon, 4 Comst. 600, 1 C. R. (N. S.) 257, the necessity of keeping the preamble of the Code in view, by those who are called upon to interpret its provisions, is strongly enforced; and the effect of the provisions above cited, is thus defined: "They," i. e., Law and Equity, "were to be blended and formed into a single system, which should combine the principles peculiar to each, and be administered thereafter through the same forms, and under the same appellation."

Although the adoption of a general and uniform system of pleading, in all cases, is a most desirable object, and is, above all others, the grand alteration which it is the express design. of the Code to effect; and, although the formal distinctions between Common Law and Equity pleadings be, as unquestionably they are, abolished by that alteration; still, such is not, and cannot be the case, with reference to the essential and inherent distinctions between Law and Equity themselves, as two separate, though connected sciences.

As long as the common law, with all its attendant doctrines, remains an existent agent, so long must the essentials of the two systems, as hitherto administered, remain indestructible. The object of the legislature, doubtless, was to blend them into one harmonious and connected whole, as far as practicable, both as to matters of form and matters of substance, and much has been done in this respect; but, to effect it wholly, was, and, as regards the latter especially, must ever remain beyond the reach of their powers.

Distinct and positive assertions of the indestructibility of the distinctions between law and equity, and of the distinctive principles of legal and equitable relief, appear, it may be safely said, in every case, in which the matter has been brought seriously under the consideration of the courts throughout the state.

In Shaw v. Jayne, 4 How. 119, 2 C. R. 69, the earliest case. upon the subject after the passage of the Code, the position above taken is maintained in the clearest and most positive. terms.

In Knowles v. Gee, 4 How. 317; Hill v. McCarthy, 3 C. R. 49; Merrifield v. Cooley, 4 How. 272; and Floyd v. Dearborn, 2

C. R. 17, it also appears unequivocally. That, although the distinctive forms of action be abolished, the principles which always have governed them still subsist in all their force, is maintained in Hinds v. Myers, 4 How. 356; and McMaster v. Booth, 4 How. 427, 3 C. R. 111. In no case does the general principle come out with greater clearness, than in Linden v. Hepburn, 3 Sandf. S. C. R. 668, 5 How. 188, 3 C. R. 165; and that clearness is, if possible, still augmented in Burget v. Bissell, 5 How. 192, 3 C. R. 215; The Rochester City Bank v. Suydam, 5 How. 216; Milliken v. Carey, 5 How. 272, 3 C. R. 250 (a case in which a restricted view of the question is taken in other respects); Carpenter v. West, 5 How. 53; Howard v. Tiffany, 3 Sandf. S. C. R. 695, 1 C. R. (N. S.) 99; and Benedict v. Seymour, 6 How. 298; not to mention numberless other decisions, in which the same rule has been acted upon in spirit, though not asserted in terms, and which will be found in almost every page of the different reports.

Universal, however, as has been the assent of the judicial body to the general principle as above laid down, very great differences have prevailed amongst them as to the minor shades of distinction in relation to its reduction into practice; the mention of which differences introduces, as its necessary consequence, the consideration, in a general point of view, of averments of facts in pleading.

The peculiar incidents to each of the different proceedings of complaint, demurrer, or answer and reply, the only modes of pleading now allowable under the Code, will be considered hereafter; but there are, nevertheless, certain broad and general principles, common to all these forms indiscriminately, and which will be now dealt with.

The observations about to be made, are, of course, inapplicable to the proceeding of demurrer, nor will the question of merely responsive allegations be here treated; the following observations will, on the contrary, be strictly confined to the general principles of pleading, which govern averments of the facts necessary to be put in issue, either in support, or in opposition to a claim; and such averments only.

The general principles of the Code in relation to averments of this nature, whether in complaint, answer, or reply, are, in reality, identical. The complaint must contain "a plain and concise statement of the facts constituting a cause of action, with

out unnecessary repetition," (sec. 142, sub. 2.) The answer, "a statement of any new matter constituting a defence or counter-claim, in ordinary and concise language, without repetition," (sec. 149, sub. 2.) And the reply "may allege in ordinary and concise language, without repetition, any new matter not inconsistent with the complaint, constituting a defence to new matter in the answer," by which a counter-claim is pleaded -sec. 153.

The omission, in the present measure, of the additional requisites imposed by the Codes of 1848 and 1849, that the averments above alluded to were to be made in "ordinary" language, and "in such a manner as to enable a person of common understanding to know what is intended," is significant. Excellent as was the meaning ofthat provision, to carry it out to its full extent was a matter of the utmost difficulty, if not wholly impracticable; first, because of the consequent necessity of fixing some definite guage of what is or is not "common understanding;" and, secondly, because of the difficulty of stating a legal cause of action concisely, or even of stating it at all, without the employment of legal terms, involving the consequent, and perhaps still greater difficulty, of making the statement thus framed intelligible to a person of "common understanding," ignorant, perhaps, of the very meaning, and, certainly, of the full import of the terms so used.

To have given the extended interpretation to the words in question, of which, in strictness, they are capable, might have. been the means of introducing a system of averment, so loose, and so illogical, as, in practice, to become almost intolerable; whilst a restricted construction of those words, such as has, in fact, almost universally prevailed, left the question just where the present amendments of the section have now placed it. By such a construction, a necessity of making his pleadings concise, intelligible, and explanatory of the matter really at issue, was practically imposed upon the pleader in all cases, and is now so imposed in terms.

The traditionary forms of the old special pleading system are therefore, as already stated, practically abolished. Under certain circumstances, however, and with certain modifications, the substantial wording of those forms may still be used, and used with advantage, especially in actions which, under the former practice, were of purely common law cognizance. Thus in Shaw v.

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