1.-Remedies.

Remedies in the courts of justice are divided into

1. Actions,

2. Special proceedings.

2.-Actions.

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

with it, but the writer of this note is alone responsible for the arrangement of the various acts directed to be published by the Act of August 24th, 1868, and designated as Title XXII of that volume. That the insertion of Title II and Chapter VIII of Title VIII, in those places, was a mistake, and has tended to mar the harmony and obscure the meaning of the Code, he is free to admit. It is, perhaps, to be regretted that Judge Battle's Revisal perpetuated this error. It was, at first, intended that only the original act, with the amendments which have since been made, should be presented in this volume. As, however, these acts have come, by long association with the Code, to be regarded by the profession generally as a part of it, and the legislation in regard to those subjects would naturally be sought there, the author, in accordance with his fixed purpose to make the work useful to the practitioner by every means in his power, has determined to embrace them in this volume, as well as a part of the XIIth Title, which has been repealed, marking the distinction, however, by the use of a different type for the text of those portions. The sections of the Revised Code and other antecedent statutes Introduced in Battle's Revisal, as supernumerary sections of the Code, will be omitted as being even less proper to be considered a part of that act, than the chapters already mentioned. In many instances, however, where they are evidently of interest, as being in pari materia, with the portions of the Code to which they were attached in the Revisal, they will be printed in a different type and under their appropriate titles. The attempted commingling of the provisions of the Revised Code and other statutes with the Code of Procedure, has tended not a little to produce a confused and indefinite idea of the provisions and character of the latter act, both in the minds of the profession and on the bench.

One purpose which the writer hopes may be subserved by the publication of this volume, will be to narrow the attention of the bar and the courts to the Code of Procedure as it is-a statute by no means perfect, but constituting, as the writer believes, the germ of the simplest, completest and most rational judicial procedure ever known. Its power of symetrical development is not the least of its valuable features. A word, added here or eliminated there, a sentence appended to a section, or a section to a chapter, as the result of a careful scrutiny of its workings, will soon constitute it a system of statutory procedure which shall perfectly subserve the wants of the people, and develope the best qualities of the legal profession. Many of the amendments already made to the Code are of this character. Others are not. Time and care are required to complete its outlines. It is hoped that this volume will lead to, and aid in, such discriminating study of the Code, as to secure its proper amendment and perfection.

a wrong, or the punishment or prevention of a public offence.

[Amended by Section 2, Chapter 277, Acts of 1868-169.]

13. Special Proceedings.

Every other remedy is a special proceeding.

66

Any proceeding which, under the old practice might be commenced by petition or motion upon notice, is a 'Special Proceeding." Tate v. Powe, 64–644.

A proceeding" to obtain damages for the erection of a mill, is a Special Proceeding. Sumner v. Miller, 64-688.

Also, a petition by an Executor or Administrator to sell lands to pay debts. Hyman v. Jarnigan, 65–96; Badger v. Jones, 66–305. Also, proceedings for the settlement of the estate of a deceased person. Hunt v. Snead, 64–176; Sprinkle v. Hutchinson, 66–450; Bell . King, 70-330; Herring v. Outlaw, 70-334.

Also, a proceeding in the nature of a creditor's bill against an Executor or Administrator. Jerkins v. Carter, 70-500; Patterson v. Miller, 72-516.a

Also, a petition for dower. Felton v. Elliott, 66-195.

Also, a petition to compel an Executor or Administrator to sell real estate to pay debts. Pelletier . Saunders, 67–261; Jerkins v. Carter, 70-500.

A suit to recover possession of land is not a Special Proceeding. Woodley v. Gilliam, 64-649.

Mandamus is not a Special Proceeding. Howerton v. Tate, 66-231.

14.-Division of Actions.

Actions are of two kinds:

1. Civil,

2. Criminal.

aSection 6, Chapter 241, of the Acts of 1876-277, provides, "That, in addition to the remedy by special proceeding now provided by law, actions against executors, administrators, collectors and guardians, may be brought originally to the Superior Court at term time; and, in all such cases, it shall be competent, to the court in which such action shall be pending, to order an account to be taken by such person or persons as said court may designate, and to adjudge the application or distribution of the fund ascertained, or to grant other relief, as the nature of the case may require." Thus leaving it to the election of the suitor to commence his action in the Superior or Probate Court.

5.-Criminal Action.

A criminal action is

1. An action prosecuted by the State as a party, against a person charged with a public offence, for the punishment thereof.

A private person is not a party to a criminal action unless duly marked as prosecutor State v. Lupton, 63—483.

The terms "Criminal Action" and "Indictment" are synonymous, and it is equally proper to entitle a case "The People v. A. B., Criminal Action," or The State v. A. B., Indictment. State v. Simons, 68-378.a

2. An action prosecuted by the State, at the instance of an individual, to prevent an apprehended crime against his person or property.

A proceeding by a peace warrant is a criminal action. State v. Locust, 63-574.

aThe language of this decision, that the terms " Criminal Action" and "Indictment," are now synonymous, seems hardly to be supported by the reasoning of the learned Justice delivering the opinion. In order to arrive at this conclusion, it becomes necessary to use the term indictment in the broad secondary sense of a prosecution, rather than in the narrower sense of a bill found by a grand jury. That this secondary sense is sometimes employed is quite true, but it is not strictly correct. It is merely by a figure of speech that the indictment-the formal charge-is used for the entire prosecution. The strictly legal sense, that of “a written accusation preferred by a grand jury" would seem to be the force of this term in the constitution. "All indictments which have been found." Sec. 9, Art. XIV: "No person shall be put to answer any criminal charge but by indictment, &c." Art. I, Sec. 12, are both susceptible of a construction fully in accord with this decision, without varying the ordinary force of this term. In both instances, the word is obviously used in its narrower and more correct significance. So that it would be more accurate to say, that the term “indictment” is used therein to designate the charge which is preferred by a grand jury against the defendant in a "criminal action." By this construction the term "criminal action" is used, as it was no doubt intended, to designate the entire proceeding against a person charged with crime, while the term "indictment" applies only to a single step in that proceeding. This view seems to be rendered necessary by the definition of criminal action in Sec. 1, Art. IV, taken in connection with 6 and 7 of the C. C. P. Indictment has never been used as applicable to the cases included under 7. It was evidently not the purpose of the Constitution or the Code, to change the method of proceeding against persons charged with crime. Such prosecution was still to be by means of an indictment, but the whole proceeding was to be "denominated a criminal action." It would still be proper to use either the words "Criminal Action" or "Indictment" in the title of the charge presented by the grand jury, not because they are synonymous, but because one includes the other. Indictment sustains the same relation to a criminal action, that complaint does to a civil action. It is the pleading by which the defendant is charged.

6.-Civil Action.a

Every other is a civil action.

The term "Civil Action" includes all causes which, under the old practice, might have been commenced by a capias ad respondendum, or were relievable by an ordinary bill in equity. Tate v. Powe, 64-644.

Also, an action in the nature of an old bill in equity to falsify an account. Murphy v. Harrison, 65-246.

Also, a suit on a guardian bond.

Rowland v. Thompson, 65-110. A proceeding in bastardy is a civil action, as distinguished from a criminal action. State v. McIntosh, 64-607.

A suit to recover possession of land is a civil action and not a special proceeding Woodley Gilliam, 64–649.

Mandamus is not a civil action. Howerton v. Tate, 66-231.

a" CIVIL ACTION ”—“SPECIAL PROCEEDING."

What is a "civil action" and what a "special proceeding," is a question which seems to have proved very troublesome to the courts. Yet the difficulty is more fanciful than real. Its only importance arises from the fact that, in some unimportant particulars, the procedure in the latter differs from that prescribed in the former. Three attempts at a definition or construction of the term "civil action" appear in our reports. One by Pearson, C. J., in Tate v. Powe as cited above, one by Judge Battle as amicus curiæ in the same case, and one by Justice Rodman, in Woodley v. Gilliam, supra. The rule laid down by the Chief Justice is in these words:

"Any proceeding that under the old mode was commenced by a capias ad respondendum, including ejectment, or by a bill in equity for relief, is a civil action; any proceeding that under the old mode may be commenced by petition, or motion upon notice, is a special proceeding."

Judge Battle suggested, that "whenever the proceeding may be ex parte, it is a Special Proceeding."

Justice Rodman says "I think those actions are special proceedings, in which existing statutes, direct a procedure different from the ordinary."

It is somewhat remarkable that neither of these learned men seems to have been quite satisfied with the distinction he had himself drawn. Judge Battle, says the report, "concluded that his was not the true line"; the Chief Justice in his decision admits that the distinction drawn by him is " merely arbitrary" and intimates that it was done more to settle a question which was troublesome, than because the court believed it correct; and Justice Rodman gives his view as an explanation of his having assented to the decision in Tate v. Powe.

Besides the fact that the rule in Tate v. Powe is merely arbitrary, as suggested by the Chief Justice, it is open to the following serious objections:

1. It is based on the assumption that the Constitution, in this respect, was framed in contemplation of the laws previously in force, when, by its express provisions, "the forms of all actions at law and suits in equity," then and theretofore existing were abolished. It is as unreasonable to seek for the line of demarcation between civil actions and special proceedings in the Natura Brevium, as it would be to attempt to separate legal from equitable defences, under the Code.

2. It presupposes the minutest knowledge of the intricacies and artificial subtleties of the common law system, as a condition precedent to a compre

7.-Remedies not Merged.

Where the violation of a right admits both of a civil and criminal remedy, the right to prosecute the one is not merged in the other.

hension of the fundamental distinctions, of a system whose professed object is the utter abolition of those distinctions. One of the very objects of the Code was to obviate the necessity of mastering the artificial subtleties of actions at law, but this definition would render it necessary that one should be a perfect master of its ins and outs, before he could understand the initial provision of the Code. It is tying to the new system the corpse of the old. It preserves all the evils of the old system with none of its advantages. "This idea “ says Judge Swann in his Pleadings and Precedents," of subordinating the Code system to any other system is in every way mischievous. The Code abolishes the common law system and adopts a new one."

3. It is not only “judicial legislation," as the Chief Justice admits it to be, but in direct repugnance to the express provisions, both of the Constitution and the Code.

Statutory definitions of “Civil Action."-It seems to have escaped the attention of the court that, while the term "civil action," as used in the Constitution, has a meaning which is defined with great precision in that instrument itself, and the same term when used in the Code of Procedure is therein defined with equal care and certainty, that the "civil action" of the Constitution is an entirely different thing from the "civil action" of the Code. To attempt to harmonize them is futile. They are not, and could not have been intended to be, identical, and it is by no means necessary that they should correspond. Each has a distinct and separate purpose to perform. They happen to be identical in name but one might as well try to put a beer quart in a wine measure of that denomination, as to superimpose the "civil action" of the Constitution upon the "civil action " of the Code, with the expectation that their parts will coincide.

Constitutional Definition.-21. Article IV of the Constitution defines a Civil Action, as follows: "There shall be in this State but one form of action, for

(a) The enforcement of private rights, or,

(b) The protection of private rights, or,

(c) The redress of private wrongs,

which shall be denominated a civil action." It will be seen that this definition includes every application, for any remedy or relief, which any private person can possibly make, in his own behalf, to a court of justice.

Every proceeding instituted for the advantage or relief of a private party, in any court, whether adversary or ex parte, must fall under one or more of the elements of this definition. It is not possible to imagine any controversy or proceeding in regard to private rights or wrongs, which is not included in this category-so that the "civil action" of the Constitution includes every action or proceeding that a private person can bring, or have need to bring, in any court of the State.

The Reason.-This definition is made thus broad for a reason which is perfectly evident, when we consider the previous portion of the same section-which abolishes

(a) The distinction between actions at law and suits in equity,

(b) The forms of all such actions,