cate, affidavit or admission, must state the time and place of the service.

The amendments in this section are the words in italic. The words "as required by law," being new, and the words "service otherwise than by publication," being substituted for the words "in case of actual service." By rule 85 of the rules of August, 1849, it is provided, "that where the service of the summons, and of the complaint or notice, if any, accompanying the same, shall be made by any other person than the sheriff, it shall be necessary for such person to state in his affidavit of service, when and at what particular place he served the same, and that he knew the person served to be the person mentioned and described in the summons as defendant therein, and also to state in his affidavit whether he left with the defendant such copy as well as delivered it to him."

Where the proof of service is the sheriff's certificate, he should state or refer to the name of the cause, and that the summons served by him was in that cause, for where a sheriff's certificate stated that he served on the defendant a copy of a summons and complaint, but it did not appear that it was the summons and complaint in the action then before the court, it was held not sufficient proof of service. Litchfield v. Burwell, 5 Pr. R., 341; 1 Code Rep. N, S., 42.

Where the proof of service is an admission by the defendant, the admission must be verified and identified, so as to satisfy the court that the admission is indeed signed by the defendant or with his assent. Thus, per Sill, J., "The service upon the defendants is sought to be proved by an admission, purporting to be signed by them; but there is nothing showing that the signatures are those of the defendants, or were placed there by their direction. The court takes judicial notice of the signatures of its officers because they are such; but there is no legal fiction by which the court is presumed to know the signature of a party defendant who has not appeared in the cause. 2 Hill, 369. Litchfield v. Burwell, 5 Pr. R., 341; 1 Code Rep. N. S., 42.

No fee for serving the summons and complaint is taxable, unless the service be made by the sheriff, and then it is taxable as a sheriff's fee. Per Allen, J., in Whipple v. Williams, 4 Pr. R., 30.

§ 139. (Amended 1851.) When jurisdiction acquired.— From the time of the service of the summons in a civil action, or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance of a defendant is equivalent to personal service of the summons upon him.

The words in italic are new. The code of 1848 had no provision corresponding

to that contained in this section.

Where the service of the summons is by publication, the action is not commenced until the expiration of the time prescribed for publication. See section 137, and McEwen's Ex'rs v. Public Administrator, 3 Code Rep., 139, 176. S. C., Moore v. Thayer, 6 Pr. R., 47.

But where an attachment had been issued against a defendant, and an order made to serve the summons by publication, and before the summons was complete the defendant died, the court held, that although the action was not commenced within section 137, or section 99, yet the plaintiff had, by virtue of the attachment and this section, acquired a provisional lien on the defendant's property, which was a right secured to him by this section. Ib.

A voluntary appearance, besides being equivalent to a personal service of the summons, is a waiver of all defects in the summons. See Webb v. Mott, 6 Pr. R 440. Dix v. Palmer, 5 ib., 233; 3 Code Rep., 214. Trapp v. N. Y. & Erie R. R. Co., 6 Pr. R., 237; 1 Code Rep. N. S., 384, and notes to sections 128 and 129 of this code. But a party may appear merely to object to the jurisdiction or to the process. Ib.

§ 140. [118.] (Amended 1849-1852.) Forms of pleading. -All the forms of pleading heretofore existing are abolished; and hereafter, the forms of pleadings in civil actions in courts of record, and the rules by which the sufficiency of the pleadings are to be determined, are prescribed by this act.

Amendments of Section.

This section supplies the place of section 118 in the code of 1848. That section enacted "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 those which are prescribed by this act."

As the section stood in the codes of 1849 and 1851, and until the amendment of 1852, it read as follows; "All the forms of pleading heretofore existing, inconsistent with the provisions of this act, are abolished; and hereafter the forms of pleadings in civil actions in courts of record, and the rules by which the sufficiency of the pleadings is to be determined, are modified as prescribed by this act."

It will be seen, therefore, that the amendment of 1849 consisted of the insertion of the words "inconsistent with the provisions of this act," and the words “in courts of record;" and that the amendment of 1852 consisted of striking out the words "inconsistent with the provisions of this act," and substituting the word "those" for the words " modified as."

Construction of this Section.

Considerable importance has always been attached to the words "inconsistent with the provisions of this act ;" and it was and is generally supposed that those words made a material difference in the operation of this section, and to a great extent limited the operation of the section as it stood in the statute, as originally passed, and as it now stands. It was doubtless with this view that the words were inserted; and it is quite probable that in consequence of the interpretation given

them they were erased. We cannot perceive, however, in what respect these words materially affected this section. It abolishes all the forms of pleading heretofore existing, and does not preclude forms of pleading thereafter existing, and they will exist. The forms of pleading thereafter existing, it may reasonably be supposed, will be forms of pleading consistent with "this act;" and so that the forms that thereafter exist are consistent with "this act," it will signify nothing whether they are forms which before existed, or have since been created; the test of their sufficiency must be the code, and if they stand that test, the date of their origin will be immaterial. So far as the forms thereafter existing correspond with the forms theretofore existing, the effect will be to preserve all the forms or parts of forms not inconsistent with the code, and which existed prior to the code. The effect can only be to abolish the forms of pleading “inconsistent with the provisions of this act." Neither form of expression can do more, neither can do less.

By the substitution of the word "those" for the words "modified as," it would seem to have been the intention of the framers of the amendment that this section should read, “All the forms [and rules] of pleading heretofore existing are abolished, and hereafter the [only] forms of pleadings in civil actions in courts of record, and the [only] rules by which the sufficiency of the pleadings are to be determined are those prescribed by this act." Whether the section will be interpreted to have this sweeping operation, remains to be seen.

Under the code of 1848, it was held that all forms and rules of pleading were abolished, and that the rules for testing the sufficiency of a pleading were those prescribed by the code. Royce v. Brown, 3 Pr. R., 390.

We suppose, however, that as with the forms so with the rules, the power of language can go no further than to abolish such is are inconsistent with the code. We will endeavor to illustrate our views by an example. It was a rule of pleading formerly existing that "a declaration must have a formal commencement and conclusion." Can any one read section 142 of the code, in connection with section 156, and deny that, since the code, it may not be laid down as a rule of pleading that “a complaint must have a formal commencement and conclusion?" The formal commencement is the title of the cause, the formal conclusion is the subscription. Is not the distinction between the old rule and the new one without a difference? Again, it was a rule of pleading at common law. "All pleadings must be true." Read section 157, and say whether it is not the intention of the code, if not to preserve, at least to reenact that rule. We will elsewhere illustrate these views more fully.

What system of pleading is to be adopted, the chancery or the common law ?

When the code of 1848 became a law, and when the code of 1849 by relation back went into effect, there existed in this State two systems of pleading, more alike, probably, in their main features and leading principles than was generally supposed, but still two separate and distinct systems; and the practitioner was met on the very threshold by the difficulty as to which of the conflicting parts of these systems was to be rejected, and which retained, or whether both systems were to be retained, or how they were to be amalgamated. The subject was very ably reviewed by Selden, J., in Knowles v. Gee, 3 Code Rep., 31 (decided while the code of 1849 was in operation), in which case the learned judge commented on the point as follows:The question presented is, how far the legislature by its recent reforms of the practice and pleadings in courts of this State, intended to abrogate the rules heretofore applied to pleadings in the courts of common law, and to substitute those which prevailed in the court of chancery.

No more important question than this, in my judgment, can arise under our new system of legal proceedings, and none the settlement of which will have a more material influence upon the convenient administration of justice in this State, while the present system continues.

It cannot be denied that the legislature, by adopting the forms of pleading heretofore in use in the courts of chancery, have given unequivocal evidence of a preference for those forms over those of the common law.

On the other hand, the abolition of the only court in which those forms were used, the transfer of its jurisdiction to the courts of common law, and the retaining of the forms and modes of trial peculiar to the latter, forbid the conclusion, that it was intended to subvert the entire system of rules which prevailed in the common law courts, and to substitute those of the obnoxious court of chancery.

In continuing two systems of jurisprudence, therefore, administered under different forms, by different tribunals, and resolving them into one, it became indispensable to borrow something from each; and the object of the legislature seems to have been, to select from both that which was most valuable-rejecting in each those portions which experience had proved to be productive of inconvenience. It is the duty of courts to aid in accomplishing this design, and in doing so they must necessarily look to the evils which existed, as well as to the means resorted to for their removal. The adoption of the forms of chancery pleadings, though not the necessary, was the natural consequence of adopting that principle in chancery jurisprudence which recognized only one form of action for all cases.

Many of the technical rules of the common law system of pleading may well have been considered as originating in, and connected with those distinctions between the different forms of action which were peculiar to that law. There are, however, some of those rules which are so well adapted to accomplish the end of all pleading, that I should find it difficult to persuade myself that the legislature could have intended to abrogate them.

The object of judicial proceedings is to ascertain and decide the point in dispute; and it is essential to the termination of every legal contest, that it be evolved and distinctly presented for decision. This indispensable end of judicial pleading was attained in different modes by the civil and common law. The rules of the latter were designed to develop and present the precise point in dispute, upon the record itself, without requiring any action on the part of the court for that purpose. Hence the parties were required to plead until their respective allegations terminated in a single material issue, either of law or of fact-the decision of which would dispose of the case. The result of this process was perfectly simple; but the system of rules by which it was attained, was necessarily artificial and complex. If always skillfully applied, they would be sure to produce the end desired; but it would sometimes happen, through ignorance or mistake, an issue would be formed, or a point presented, not involving the real merits of the controversy, and a decision be thus produced contrary to the real justice and equity of the case. This was the sole vice of the system, but it was sufficient to create strong feeling against what is termed, special pleading.

Two remedies were applied. One was, a liberal allowance of amendments and repleaders; the other, general pleadings, under which parties were allowed the widest scope, in the proof of facts not appearing upon the record. The latter expedient has had many advocates; but the evils to which it tended were so obvious, that it is now generally condemned, and is repudiated by the code.

By the civil law the parties were not required to plead to issue, but were permitted to spread all the facts in detail constituting their cause of action or defense, at large upon the record; questions of law were not necessarily separated from questions of fact, but the whole case was presented in gross to the court for its determination.

This system, of course, avoided the evil which attended that of the common law, of sometimes causing the case to turn upon some false, immaterial, or technical issue; but it had other defects peculiar to itself. It threw upon the courts the labor of methodizing the complex allegations of the parties, and developing the real points in dispute.

There was an additional reason, too, why this system was not adopted in the common law courts of England. The determination of questions of law and of fact belonging to different tribunals, it was, of course, extremely convenient, if not indispensable, that they should be separated upon the record before the case was presented for trial. Besides, as little time could be afforded at nisi prius, to evolve from a complicated mass of facts, the points about which alone the parties differed, the rules requiring all issues to be certain and single, would be sure to commend themselves to all who were in any way concerned in the disposition of such cases.

On the other hand, when the court of chancery took its rise, and began to take cognizance of judicial contests, the mode of trial by jury not appertaining to that court, the inconveniences resulting from mingling questions of law and fact, to be referred to different tribunals, was not felt by it. As the chancellor could take all the time requisite for the fullest examination, and as he assumed originally to eschew the strict and technical rules of the common law, and to proceed upon the broad equities of the case, he naturally encouraged the presentment of the facts at large. Hence the adoption of the forms of the civil law. Now, no one will dispute that to

disencumber the record of all extraneous matters, and of every thing irrelevant and immaterial, and thus present to the judicial mind the naked point to be passed upon, is a highly desirable object; nor will it be denied by any one really acquainted with the subject, that the system of common law pleading was admirably adapted to accomplish that end.

But, while it is conceded that common law pleading, as a system, is supplanted, it is unnecessary to admit that every vestige of its valuable rules has been swept away. It has been my object in this brief and imperfect sketch of the distinguishing characteristics of the two systems, so to exhibit the value of some of those rules, as to show that wisdom requires them to be retained, and the legislature must so have intended, so far as could be done consistently with the main object in view; to wit, That of so simplifying the mode of pleading, that it could not be perverted by chicanery and cunning to purposes of injustice. The code itself bears evidence of a due appreciation by the legislature of the importance of certainty and precision in the statement of a charge or a defense, as well as of a separation of various defenses, so that each shall be singly presented (See sections 150 and 160), adopting in these respects the principles of the common law, and enforcing them in a summary manner by motion, instead of the more dilatory and expensive proceeding by demurrer.

Upon what, then, rests the position that it was the intention of the legislature, in its recent reforms, to substitute entire chancery pleadings for that of the common law?

The code has nowhere so said; it is a mere inference from the adoption, in substance, of the forms, or rather names of the pleadings in the court of chancery. This circumstance, however, is more than counterbalanced by the destruction of the court itself, together with the transfer of its jurisdiction; and by the consideration that the complex issues presented by chancery pleadings, are incompatible with trials by jury.

In a subsequent case, Rochester City Bank v. Suydam, 5 Pr. R., 216, the same judge (Selden) again reviewed the previous systems of pleading, and the extent of their modification by the code of 1849, which resulted in his concluding that the civil (i. e., the equity) and common law systems of pleading were adapted each to its own peculiar mode of trial, and that so long as the jurisdiction at law and in equity are kept distinct, so long must different rules be applied to pleadings at law and in equity. The code does not attempt to abolish the distinction between law and equity, even if it had the power to do so. The statement, therefore, of the facts in a complaint should be in conformity to the nature of the action. If the case and the relief sought be of an equitable nature, then the rules of chancery pleading are to be applied to it; otherwise, those of the common law.

A similar opinion was expressed in Hill v. McCarthy, 3 Code Rep., 49. Floyd v. Dearborn, 2 Code Rep., 17. In the one case, Mason, J., said, "There was still recognized a distinction between actions of a legal and equitable nature, for some purposes." And in the other, Edmonds, J., said, "You are seeking to apply a rule of equity pleading to a strictly law action." Of the same opinion seems to have been Hand, J. See Carpenter v. West, 5 Pr. R., 53. And Welles, J., in Burget v. Bissell, ib., 192. Opposed to these is the opinion of Sill, J., in Milligan v. Cary, 3 Code Rep., 250. And Harris, J., in Williams v. Hayes, 1 Code Rep. N. S., 148; 5 Pr. R., 473. In Milligan v. Cary, Sill, J., says: The plaintiff has in this case adopted the mode of pleading which was used in the court of chancery. The fact which, if established, entitles him to relief, is the fraudulent intent of the defendant. To this fact the plaintiff could not swear positively, and he has therefore stated circumstances and evidence in detail which, he claims, proves prima facie the main charges in the case.

The question first presented is, whether this mode of pleading is now admissible. The code directs that the complaint shall contain "a statement of the facts constituting the cause of action."

This provision has, I believe, been uniformly construed to exclude a detailed statement of the evidence, and to confine the pleader to a statement of the facts only upon which his right to relief depends.

It is said, however, that such decisions were made in common law actions, and that the method of pleading pursued in this case is still allowable, where equitable relief is demanded.

I am satisfied that there are actions of legal and equitable cognizance, between which, as heretofore, the constitution and laws recognize a distinction. But one uni