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summons in two newspapers, which the judge may designate, as most likely to give notice to the defendant, and for such length of time, not less than thirty days, as the judge shall deem reasonable. In case of publication, the judge shall also direct a copy of the summons to be forthwith deposited in the post office, directed to the defendant, at his place of residence, unless it appear to the judge that such residence is neither known to the party making the application, nor can with reasonable diligence be ascertain:d by him. Personal service of the summons on the defendant, out of the state, shall be equivalent to publication, and deposit in the post office.
The provision contained in this section, is, as we think, not only right in itself, but necessary, in consequence of the blending of legal and equitable jurisdictions. In suits at common law, personal service has been heretofore required, while in suits in equity, an advertisement has been allowed against absent defendants, when personal service could not be made. Uniformity in this respect is now necessary.
We see no reason, why the rule prevailing in equitable cases, should not be
extended to all. Such a rule prevails in several of the states. § 115. Where the action is against several defendants, any one of whom is actually served with the summons, the plaintiff, instead of service of the summons, actually or by publication, on the others, as provided by sections 113 and 114, may procced as follows:
1. If the action be against several persons, jointly indebted upon a contract, he may proceed against the defendant served, in the same manner, as at present, and with the like effect, unless the court shall otherwise direct:
2. In an action against defendants severally liable, he may amend his complaint, of course, by striking out the name of the other defendants, and may proceed against the defendants served.
f 116. In the cases mentioned in the last two sections, the service of the summons shall be deemed complete, at the expiration of the time prescribed by the order for publication.
§ 117. Proof of the service of the summons, and of the complaint or notice, if any, accompanying the same, shall be as follows :
1. If served by the sheriff, his certificate thereof; or 2. If by any other person, his affidavit thereof; or
3 In case of publication, the affidavit of the printer, or his foreman, or principal clerk, shewing the same ; and an aslidavit of a deposit of a copy of the summons in the post office, if the same shall have been deposited;
4. The written admission of the defendant :
In case of actual service, the certificate or affidavit shall state the time and place of the service.
Of the pleadings in civil actions.
CHAPTER I. THE COMPLAINT.
I. THE DEMURRER.
SECTION 118. Forms of pleadings heretofore existing, abolished.
119. First pleading to be complaint.
$ 118. All the forms of pleading heretofore existing, are abolished ; and hereafter, the forms of pleading in civil actions, and the rules by which the sufficiency of the pleadings is to be determined, shall be t!:ose which are prescribed by this act.
As has been already remarked, the change in the mode of pleading is the key of the reform which we propose. Without this, we shoull despair of any substantial and permanent improvement in our modes of legal controversy. With, it we think we can frame a coile of legal procedure, simple in its construction, easily understood and efficient for all the purposes of justice.
The pleadings, we bave said, are the written allegations of the parties of the cause of action on one side, and the defence on the other. Their object is three-fold : 10 present the facts on which the court is to pronounce the law ; to present them in such a manner, as that the precise points in dispute shall be perceived, to which the proofs may be directed; and to preserve the record of the rights determined. Not one of these objects is gained by the law of pleading as it now exists in this state. They are all evaded.
Different modes of pleading are used, according as the case is of legal or of equitable cognizance. We have already explained their history. In a remote period of English law, an action was commenced by what was called an original writ, issued out of the chancery, describing briefly the cause of action, and returnable before one of the courts of common law. It was this which gave jurisdiction to the court, the writ being at once a summons to the defendant, and a commission to the judges to take cognizance of the case. It can be traced to the time of Henry II., anıl came, it is supposed, from Normandy, being brought into England at the conquest. It certainly was unknown to the Anglo Saxons.
On the return of the writ to the court of common law the pleading commenced. The plaintiff repeated the writ and the defendant answered it. The allegations at first were made orally and taken down by the clerk. Oral pleadings were discontinued about the middle of the fourteenth century, but the same forms were used as before, and even now the record is framed as though the parties or their attorneys made their allegations in open court. The record was kept in Norman French until the year 1353, from that time until 1730, in Latin, and since then, by act of parliament, in English.
The pleadings were short and simple at first, but by degrees their character in this respect was entirely changeil. Many of them are now in the year books. Any one who will look there, will see how different were the forms in their origin and in our day.
The original writs were couched in set forms. If there happened to be no form suitable for the complaint, and the case were analagous to a case already provided for, the clerks in chancery were authorized to form a writ upon the case. But there were many causes of complaint for which no writ analagous to one existing could be devised, and in these the court of charicery itself, not being straightened by forms, undertook to administer the necessary relief. We see then at a glance the origin of the difference between the various forins of actions at law and between law and equity, The original writs being in set forms and classified, created the variety and distinction of actions, and these actions being altogether too narrow for many cases deserving of remedy, the chancellor supplied the deficiency by taking the case into his own hands.
It will thus be perceived that but for the set forms of the common law, there would have been no occasion for a court of equity. The one grew out of the other. It will be perceived, also, that these forms are not indigenous to the Anglo Saxons, but were brought from abroad and imposed on them by conquest.
Our most valued institutions came to us from the Saxons. The trial by jury is of Saxon origin, and certainJy is in no way connected with the forms of action.
The actions thus commenced by different writs, continued different in form throughout their whole duration. Each had rules peculiar to itself. At one time it is supposed there were fiftynine of thein. They have been gradually reduced, till we have now in this state but ten. The principle upon which they rest, if principle it can be called, is a fallacy. It is this, that all necessary remedies could be foreseen, a foresight as impossible as that of future events. The system has, therefore, been a failure, and the enormous growth of the court of chancery the consequence. No new action has been devised within the last three hundred years; and the courts of law of republican New-York, in the nineteenth century, are administering justice, in the forms of the courts of monarchial England, in the sixteenth.
The narrow rules which the courts applied to the construction of the pleadings, requiring the proof to correspond with the allegation in the inost literal sense, led to repetitions and to the use of different counts, as different modes of stating the same case. Thus the pleadings came to be that mass of verbiage which they now are.