2. If the action be against defendants severally liable, he may proceed against the defendants served, in the same manner as if they were the only defendants;

3. If all the defendants have been served, judgment may be taken against any or either of them severally, when the plaintiff would be entitled to judgment against such defendant or defendants if the action had been against them, or any of them, alone;

for

any

4. If the name of one or more partners, shall, canse have been omitted in any action in which judgment shall have passed against the defendants named in the summons, and such omission shall not have been pleaded in such action, the plaintiff in case the judgment therein shall remain unsatisfied, may by action recover of such partner separately, upon proving his joint liability, notwithstanding he may not have been named in the original action; but the plaintiff shall have satisfaction of only one judgment rendered for the same cause of action.

288.-When service complete.

In the cases in which service by publication is allowed, the summons shall be deemed served at the expiration of the time prescribed by the order of publication.

89.-Proof of service.

Proof of the service of the summons and of the complaint or notice, if any, accompanying the same, must be: 1. By the certificate of the sheriff or other proper officer. 2. In case of publication, the affidavit of the printer, or his foreman, or principal clerk, showing the same, and an affidavit of a deposit of a copy of the summons in the post office as required by law, if the same shall have been deposited; or

3. The written admission of the defendant.

In case of service otherwise than by publication, the certificate or admission must state the time and place of ser

An adjudication that the summons has been served is necessary to a valid judgment. Hyman v. Jarnigan, 65-96.

The admission must be in writing, verified and identified, so as to satisfy the court that it is signed by the defendant or with his assent. Middleton v. Duffy, 73–72.

{ 90.—Jurisdiction—Appearance-Notice of lis pendens.

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 suminons upon him.

In action affecting the title to real property, the plaintiff, at the time of filing the complaint, or at any time afterwards, or whenever a warrant of attachment, under (Title IX, Chapter IV) of this Code, shall be issued or at any time afterwards; or a defendant-when he sets up an affirmative cause of action in his answer and demands substantive relief—at the time of filing his answer, or at any time afterwards, may file with the clerk of each county in which the property is situated, a notice of the pendency of the action, containing the names of the parties, the object of the action, and the description of the property in that county affected thereby; and if the action be for the foreclosure of a mortgage, such notice must be filed twenty days before judgment, and must contain the date of the mortgage, the parties thereto, and the time and place of recording the same. From the time of filing only, shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby; and every person whose conveyance or incumbrance is subsequently executed or subsequently recorded, shall be deemed a subsequent purchaser or incumbrancer, and shall be bound by all proceedings taken after the filing of such notice, to the same extent as if he were made a party to the action. For the purposes of this section, an action shall be deemed to be pending from the time of filing such notice; provided, however, that such notice shall be of no avail unless it shall be fol

lowed by the publication of the sunmons or an order therefor, or by the personal service thereof on a defendant, within sixty days after such filing. And the court in which the said action was commenced may, in its discretion, at any time after the action shall be settled, discontinued, or abated, as is provided in section sixty-four (§ 64) on application of any person aggrieved, and on good cause shown, and on such notice as shall be directed or approved by the court, order the notice authorized by this section to be canceled of record by the clerk of any county in whose office the same may have been filed or recorded; and such cancellation shall be made by an indorsement to that effect on the margin of the record, which shall refer to the order, and for which the clerk shall be entitled to a fee of twentyfive cents..

In an action upon a note in which an attachment was issued and levied on certain lands, as those of the defendant, certain other persons claiming the lands asked to be made parties. The court say: "They had no right to become parties to the original action on the note. They had no interest in that controversy and could not be benefitted or prejudiced by its results, nor could they intervene in the attachment being strangers to the action."

The decision states, however, that these same parties might have protected their interests, by filing a notice of lis pendens but whether as plaintiffs in a new action or on their petition to intervene, does not distinctly appear, from the decision. Toms v. Warson, 66-417. 290.a-Ex parte proceedings, in term time.

[Acts of 1871-72, Chapter 3, Section 1.]

In all cases where the Superior Court in vacation has jurisdiction under the existing laws of the State, and all of the parties unite in the proceedings, they may apply for relief to the Superior Court in vacation or in term time, at their election.

Chapter

TITLE VIII.

OF THE PLEADINGS IN CIVIL ACTION,

I. Of the Complaint.

Chapter II. The Demurrer.
Chapter III. The Answer.

Chapter IV. The Reply.

Chapter V.

Duties and powers of the Clerk of the Superior Court in relation to the pleadings, and in collateral matters.

Chapter VI. General rules of pleadings.

Chapter VII.

Mistakes in pleadings and amendments.

Chapter VIII. Of the qualification and general duties of Clerks of the Superior Courts.

CHAPTER I.

OF THE COMPLAINT.

SEC. 91. Forms of pleading.

92. Complaint.

91.-Forms of pleading.

SEC. 93. Complaint, what to contain.

All the forms of pleading heretofore existing are abolished; and hereafter, the forms of pleading in civil actions. in courts of record, and the rules by which the sufficiency of the pleadings is to be determined, are those prescribed by this Code.

The rules of pleading and construction at the common law have not been abrogated. The essential principles remain, and have only been modified as to technicalities and matters of form. Parseley . Nicholson, 65-207.a

Contra, Moore v. Edmiston, 70-510, see opinion cited in full under § 128.

a The language of Mr. Justice Dick, in this decision, is much broader than the question before him required that he should use and, while it has been several times formally cited and approved by the court, it has, by no means, received their practical sanction. (See the opinion of Bynum, J., cited in full under 128.) In effect, their decisions have been in direct conflict with it. It has afforded, however, one of those delusive formulas, which are so often the source of actual error. This formula has become a favorite at the bar, where it is often used with as little appreciation of its real import, as it must have been by the learned justice in this case.

The language of the Code is explicit that not only the forms of pleadings at common law are abolished, but also, that the rules by which the sufflciency of pleadings are determined, shall be those prescribed in the Code itself.

The common law rules of pleading.-In actions at law the rules of pleading were designed simply to elaborate, in technical language, a con

The object of the Code was to abolish the different forms of action, and the technical and artificial modes of pleading used at common law, but not to dispense with regularity, certainty and uniformity, which are essential in every system. The plaintiff must state his cause of action with the same substantial certainty that was formerly required in a declaration. Oates v. Gray, 66–442.

(In this case the learned justice has fallen into the same error of expression which was noted in his decision in Parseley v. Nicholson.) The word "plead" used in the Act of 1868-69, chapter 76, section 4. must be regarded as an inadvertence on the part of the Legislature, and as not intended in any manner to change the system of pleading established by the Code. Ibid.

While the Code nowhere expressly adopts the doctrine of aider by admissions express or implied in pleading over, the principle commends itself so strongly by its good sense, that it must be taken to un

clusion of law. It did not aim at a simple statement of the facts constituting the basis of the right to sue, in each particular case, but an allegation of legal effects. Except in one or two of the actions at law there was no attempt at stating the actual facts on which the action was based, in the declaration. Very frequently the allegations of the pleading were utterly at variance with the facts on which the plaintiff rested his right of recovery. In none of them, did he narrate the actual transactions between the plaintiff and defendant, but stated rather, what he conceived to be the legal effects of those transactions.

So too, the issue in an action at law was usually one of legal inference, and not of fact. Whether the conclusion set out in the declaration was true or false was the question for decision in such action and the issue was a compound one of law and fact.

It is true, the issue might be one of fact alone, but it was rarely so presented in the pleadings. Thus, in an action upon a promissory note or simple contract to pay money the chief averment, of the declaration was that the defendant promised to pay, and the defendant for plea averred, under the general denial, that he did not promise, which might mean that he did not make such contract, that he was an infant and unable to contract, that he was under duress at the time he made it, or that he had performed it or that its breach was compromised. In short, almost every fact which could bar a recovery was embraced in common law pleading, by a denial of the legal conclusion that he had promised.

Under the Code, however, facts only are to be alleged in the complaint and these must be met either (1) by a specific denial of all, or, (2) by an admission of some and a denial of other material facts, (3) by an averment of other facts, or (4) by the allegation that such facts do not constitute a cause of action or some legal reason why they do not suffice to fix the defendant with liability in the premises.

The object of common law pleading was to develope some one question and agree upon this question as the point to be decided in the case. The Code requires a narrative of the facts constituting the plaintiff's cause of action-the facts on which his right to relief arises-and the admission or denial of those facts by the defendant, leaving the law to be applied, and the relief to be determined, by the court.

That systems so utterly diverse in their character and purposes should be governed by the same rules, is too plainly impossible to be seriously claimed by any one who will for a moment consider their distinctive characters.