(e) The forms of all such suits.

The purpose was to utterly wipe out and annul all forms of civil proceeding-all means for the ascertainment and adjudication of private rightsand to substitute in the place of all that had been theretofore, “one form of action" under which all civil remedies might be sought and obtained in the courts of this State.

This definition was never intended to apply only to causes of action of which the Superior Court has jurisdiction, any more than to actions in the Courts of Justices of the Peace, or Probate Courts. It was not intended simply to mark the line which separates the jurisdiction of the courts. It is as universal as words can make it and leaves no room for construction. It does not appeal to any obsolete forms or obliterated distinctions to ascertain the limits of the term "civil action," but only inquires, "What purpose is it designed to subserve?" If a private one, then it is civil action.

The Code Definition.-By careful consideration of the first six sections of the Code, the following definition of a civil action is eliminated:

A civil action is

(a) An ordinary proceeding in a court of justice,
(b) by which one party prosecutes another party,
(c) for the enforcement of a private right, or,
(d) the protection of a private right, or,

(e) the redress of a private wrong.

It will be seen that the last three of these elements by which a civil action is to be distinguished, are identically those of the constitutional definition, The two first, to-wit: "an ordinary proceeding in a court of justice by which one party prosecutes another" have been superadded to the constitutional definition.

The suggestion of Judge Battle in Tate v. Powe is in strict conformity with this definition. A proceeding which may be ex parte, cannot be a civil action under the definition given in the Code.

The Cause of these Differences.-The reason of this difference between the Code definition and that found in the Constitution is this. The section of the Constitution which has been referred to, was taken originally from a code in which it occupied the same relative position as does Section 12 in ours. That is, it followed the definition of civil action, and was designed mainly to negative the idea that the civil action was an additional remedya new form of action added to the common law and equity forms, already extant, but not inconsistent with them. In our case, however, it was separrted from this relation and put in the Constitution as the root of the Code system. As such it precedes and dominates the classification of the Code and can neither be avoided by construction nor legislated out of its imperative significance either by the Legislature or by the Court.

The Effect of this Difference.-Altogether unconsciously, the logical instincts of the profession have led both the bar and the bench to give the fullest effect to both of these definitions, in the spheres they were respectively designed to control. Every action or proceeding by which a private right is to be vindicated or private wrong redressed, in any court of the State, is today, a civil action according to the constitutional definition.

There is but one form of action in use to accomplish such an end. By **form of action " is not meant mere identity in the form of the summons or in the time, when, or place where, the same is returnable. The form of action, at the common law, affected not only the writ but the declaration, the plea and the judgment. In other words, the form of action depended on the declaration which could be met only by certain specified pleas and allowed only a specific judgment to be pronounced. There were many forms of action" at common law. In equity there was but one "form of action."

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Under the operation of the Constitution we have now but one form of action whether in the Courts of Justices of the Peace, Probate, or Superior Courts: whether in adversary or ex parte proceedings; whether as regards legal or equitable rights. That form of action, briefly stated is, that the party apply Ing for relief, having made the proper parties, and set forth the facts which constitute his cause of action, in ordinary and concise language, and made due proof thereof, may receive any relief within the verge of the court's Jurisdiction, to which those facts show him to be entitled, without regard to the prayer of his complaint or the remedy which he sought to obtain or believed himself entitled to receive.

Thus, effect has been given to the definition embodied in the Constitution. The civil action of the Code has also been universally recognized as meanIng the necessarily adversary actions cognizable by the Superior Courts,those in which one party prosecutes another party," according to the terms of that definition. Without having been distinctly stated hitherto, it has been tacitly admitted that the "civil action," as defined in the Consti tution is one thing, and the "civil action" as defined in the Code is quite another thing.

Special Proceedings.—Are special proceedings, then violative of the Constitution? In name they certainly are. The Constitution expressly declares that every proceeding, to establish private right or redress private wrong "shall be denominated a civil action." This was purposely and wisely done. In the law names easily become things. There is little doubt that there was, at first, but one form of action at common law, but the habit of calling certain frequently used and approved forms of declaration by specific names, finally established them as distinct and separate, technical forms of action. To prevent this and to preserve the great principle of one form of action, the Constitution prescribed also, that it should have but one name wherever found, because identity of name is a most potent instrumentality for securing identity of character.

In spirit, as already observed, the Special Proceedings have not been violative, to any considerable degree, of the Constitution. The oneness of form has been well preserved in nearly all of them. In general, the party seeking relief must make the necessary parties by summons, state his cause of action so that its substance may be readily gathered; his adversary may deny his facts by answer or his law by demurrer, and he may have either equitable or legal relief according to his merits and without regard to his prayer. In effect, and according to the practice of the courts, the suggestion of Mr. Justice Rodman, in Woodley v. Gilliam is the true distinction between the "Civil Action " of the Code and "Special Proceedings." "Those actions, "says he, (evidently referring to the constitutional classification of civil actions") are Special Proceedings, in which existing statutes direct a procedure different from the ordinary." In other words, as I understand the learned Justice, to say, the legislature has taken a portion of the actions defined by the Constitution as "civil actions," and made them "Civil Actions" under the Code. It has taken others of the constitutional class "civil action" and made them Special Proceedings, still preserving identity of form and using the term Special Proceeding, simply to distinguish certain specific classes whose procedure varies in some unimportant particulars from others.

I cannot refrain from again calling the attention of the profession, in this State, to the very admirable discussion of the Civil Action, given by Mr. Pomeroy in his excellent work entitled "Remedies and Remedial Rights." This is the only systematic work upon the Reformed Procedure, and it is not too high praise to say that no one can obtain a full knowledge of that system, in no other manner so easily and well, as by the study of the work.

TITLE I.

RESTRICTIVE PROVISIONS.

BEC. 8. To what actions the Code is | SEC. 9. Definition of Court; to mean applicable. clerk, when.

{8.-To what actions the Code is applicable.

The following enactments are applicable to:

1. All civil actions, which at the approval, by the government of the United States, of the Constitution adopted by a Convention of this State, on the sixteenth day of March, 1868, were pending in any County Court, Superior Court of law, or Court of Equity, of this State, and which were not founded on contract, as far as they may be, according to the stage of progress of the action, and having regard to its subject and not to its form.

Teague . James, 63-91; Gaither v. Gibson, 63-93; Walton v. McKesson, 64-154; Lewis v. McNatt, 65-63; Johnson v. McArthur, 64-675; Sutton v. Owen and Carter, 65-123; Ragland v. Currin, 64-355.

[See, also, 400-402, post.]

2. All civil actions which shall be commenced after the ratification of this Act, not founded on a contract made prior to its ratification.

Merwin v. Ballard, 65–168, and the cases cited under subdivision 1, supra.

3. a All civil actions commenced prior to the ratification of this Act, or which shall be commenced hereafter, for causes of action included within the provisions of an ordinance, entitled "An Ordinance respecting the jurisdiction of the courts of this State," ratified on the fourteenth day of March, 1868: [but such actions] shall be governed in respect to the practice and procedure therein, by the provisions of that ordinance, and by the existing laws, as far as they may be, except as to form.

a This subdivision of the section is omitted in Battle's Revisal though it does not seem to have been repealed. As affecting the method of procedure by excepting certain causes of action from some of the provisions of the

Smith v. McIlwaine, 63-95; Teague v. James, 63-91; Merwin v. Ballard, 65-168, and the cases cited under sub-division 1 of this section.

4. All civil actions commenced prior to the ratification of this Act, or which shall be hereafter commenced, founded on a contract made prior to the ratification of this Act, and not embraced in the ordinance above-mentioned: [but such actions] shall be governed in respect to the practice and procedure therein, up to, and including the judgment, by the laws existing prior to the ratification of this Act, as near as may be except as to form, and the practice in such actions subsequent to judgment, shall be governed by the enactments of this Act.b

[Amended by Act of 1868-'69, Chapter 277, Section 4.]

Teague v. James, 63-91; Smith v. McIlwaine, 63-95; Valentine v. Holloman, 63-475; Merwin v. Ballard, 65-168.

The Code of Civil Procedure does not repeal the provisions of the Revised Code except where inconsistent with it, and certain portious which are expressly enumerated in C. C. P. Boylston Insurance Co. o. Davis, 74-78.

9.-Definition of “Court”—to mean Clerk, when.

In those of the following enactments, which confer jurisdiction or power, or impose duties, when the words "Superior Court," or "Court," in reference to a Superior Court, are used, they mean the Clerk of the Superior Court, unless otherwise specifically stated, or unless reference is made to a regular term of the Court, in which cases, the Judge of the Court alone, is meant.c

McAdoo v. Benbow, 63-461; Pelletier v. Saunders, 67-261.

Code, which was its purpose, it has always been inoperative, being affected with the unconstitutional taint of the statute to which it refers. As a specification of one of the classes to which the Code is applicable, without modification or limitation by the provisions of that Act, it seem to be important that it should be perpetuated. The clause enclosed in brackets was suggested by Pearson C. J., in Smith v. McIlwaine, and gives, undoubtedly, the proper significance of this, as well as the next subdivision of this section. b See note a under sub-section 3, and compare with this, sections 400 and 402 post, which are in pari materia,

c Consult also Section 48, Chapter 113, Laws of 1868–69.

TITLE II.a

SUPERIOR COURTS.

SEC. 10. Regular Terms of the Supe- | SEC. 11. Special Terms, how called. rior Courts, when held. 11.a Rotation of Judges.

10.-Regular Terms of the Superior Court-when held.

[Chapter 255, Acts of 1876-77.]

After the first Thursday in August in the year of our Lord one thousand eight hundred and seventy-eight, the State shall be divided into nine judicial districts and the superior courts in the several counties shall be opened and held at the times hereinafter expressed, and each court shall continue in session one week, or two weeks, as the case may require, and this act will allow, unless the business thereof shall be sooner disposed of, namely:

FIRST JUDICIAL DISTRICT.

The first judicial district shall be composed of the following counties, and the superior courts thereof shall be held at the following times, to-wit:

Currituck, first Monday of March and September. Camden, second Monday of March and September, Pasquotank, third Monday of March and September. Perquimans, fourth Monday of March and September. Chowan, first Monday after fourth Monday of March and September.

a This Title was, originally, a part of an Act entitled "An Act to prescribe the powers and duties of the Clerks of the Superior Courts." It was among those which the Legislature directed to be published under the supervision of the Code Commissioners, and was separated from the remainder of the Act and published as Title II, of the Code, by the writer. As before stated it was at first, intended to omit this Title entirely, but from considerations of convenience, it has been determined to insert the Act of 1876-27, ch. 255, so far as it regulates the Districts and terms of the Superior Courts, the Act of 1868-19, ch. 273, providing for Special Terms, with its Amendments, together with the Act of 1876-27, ch. 27, providing for the rotation of Judges in holding the courts of different districts. The first named act, has been carefully compared with the original copy in the Secretary of State's office. It seems hardly possible that some of the terms should have been intended to be held as therein provided, but ita lex scripta est.