JUDICIAL DISTRICTS OF THE STATE. First, Hon. BENJ. F. MYRES,. Thirteenth,... Hon. EDWARD BURKE,. Fourteenth,... Hon. NILES SEARLS,. AN ACT TO REGULATE PROCEEDINGS IN CIVIL CASES IN THE COURTS OF JUSTICE OF THIS STATE. AS PASSED APRIL 29, 1851, AND AMENDED MAY 18, 1853; MAY 18, 1854; APRIL 28, MAY 4 AND MAY 7, 1855; FEBRUARY 20, 1857; MARCH 24, APRIL 15, 1858; FEBRUARY 21, MARCH 28, APRIL 2 AND 12, 1859; APRIL 28, 1860. 1. The practice act is prospective, and not retrospective in its operation. People v. Hays, 4 Cal. 127. 2. This act applies, as a general rule, as well to cases in equity as to actions at law. Riddle v. Baker, Cal. April T. 1859; Goodwin v. Hammond, ib.; Duff v. Fisher, Cal. April T. 1860. The People of the State of California represented in Senate and Assembly, do enact as follows: TITLE I. OF THE FORM OF CIVIL ACTIONS, AND OF THE PARTIES THERETO. 1. There shall be in this state but one form of civil action, for the enforcement or protection of private rights, and the redress or prevention of private wrongs. 1. "There shall be but one form of civil action," extends only to the form and to the pleadings, dispensing with the technicalities in the statement of the cause of action and defense, without regard to ancient forms, whether of assumpsit, trespass, or ejectment, etc. De Witt v. Hays, 2 Cal. 463. 2 2. Although the forms of civil actions are similar, yet the distinction of common law in actions is preserved, and if a plain, speedy and adequate remedy exists at law, the party will not be allowed to resort to equity pleadings. White v. Fratt, Cal. April T. 1859; Cole v. Reynolds, 18 N. Y. 74. 3. We still recognize the use of common counts as proper in the practice in this state under the act, yet we have never gone so far as to recognize a jumble of all the causes of action in one count. Buckingham v. Waters, Cal. Oct. T. 1859. 4. The blending of an action at law with one in equity, is admissible under our system of practice, but to prevent confusion, and preserve the simplicity and directness requisite in the averments of a complaint in an action at law, the grounds of equity interposition should be stated subsequently to, and distinct from, those upon which the judgment at law is sought. Natoma Water Co. v. Clarkin, Cal. Oct. T. 1859. 5. The form of an action is determined by the matter set forth in the complaint, and not by the name which the plaintiff may give it. Cornes v. Harris, 1 Coms. 223. 6. There is no longer a distinction between suits at form of the pleadings or the jurisdiction of the court. Benson, 5 Duer, 168. law and in equity, either in the General Mutual Insurance Co. v. 7. Abolishing the forms of pleading does not disturb the common law rule as to the order of introducing matter of defense. Van Buskirk v. Roberts, 14 How. Pr. 61. 2. In such action the party complaining shall be known as the plaintiff, and the adverse party as the defendant. 1. A person named as defendant, and not served with process, is not a party to the action. Robinson v. Frost, 14 Barb. 536; East River Bank v. Cutting, 1 Bosworth, 636. 3. When a question of fact not put in issue by the pleadings is to be tried by a jury, an order for the trial may be made, stating distinctly and plainly the question of fact to be tried; and such order shall be the only authority necessary for a trial. 4. [1854, 1855.*] Every action shall be prosecuted in the name of the real party in interest, except as otherwise provided in this act; but in suits brought by the assignee of an account, unliquidated demand, or thing in action not arising out of contract, assigned subsequently to the first day of July, 1854, the assignor shall not be a witness on behalf of the plaintiff. 1. The assignor cannot be a witness for the assignee. Jones v. Post, 4 Cal. 14; Griffin v. Alsop, ib. 406; Allen v. Citizens' Steam Navigation Co., 6 Cal. 400. *Statutes of 1855, 303. |