To what extent former practice in force.-So much of the Revised Code, in regard to the procedure in the courts as is not inconsistent with, nor superseded by, the Code of Civil Procedure, is still in force. Clerk's Office v. Huffsteller, 67-449; Sims v. Goettle, 82-268; Loudon v. Bear, 84-266. The Code of Civil Procedure is a mere supplement to the practice and procedure established by the Revised Code. Boylston Ins. Co. v. Davis, 74-78. The rules of pleading at common law and their essential principles still remain, modified only as to technicalities and matters of form. Parsley v. Nicholson, 65—207; Hinsdale v. Sinclair, 83–338. Courts of equity will not entertain a suit for the construction of a devise, but will leave the devisee to assert his right at law, in an action to recover the land. Woodlief v. Merritt, 96-226. Little v. Thorne, 93-69. The Constitution has not abolished the principles of equity, and where the statutory procedure thereunder is silent, or inadequate, the practice in the late courts of equity may be invoked. The jurisdiction in courts of equity to correct material mistakes is unquestionable. Morrisey v. Swinson, 104-555. Equities must be pleaded.- Although there is but one form of action, the court cannot proceed to adjust equities unless they are set up in the pleadings. Lumber Co. v. Wallace, 93-22; Rawlings v. Hunt, 90—270; Ledbetter v. Quick, 90-276; Stamps v. Cooley, 91-316; Moore v. Cameron, 93-51. What is repealed by the C. C. P.-The Code of Civil Procedure does not repeal the provisions of the Revised Code, except where inconsistent with it, and certain portions which are expressly enumerated in the C. C. P. Boylston Insurance Co. v. Davis, 74-78. [NOTE. This seems otherwise by 3867, Code of 1883.] To what actions the C. C. P. is not applicable.-Actions pending at the time the C. C. P. was ratified are to be proceeded with and tried under the laws and practice in force prior to the C. C. P. Teague v. James, 63-91; Gaither v. Gibson, 63-93; Valentine v. Holloman, 63-475; Walton v. McKesson, 64-154; Johnson v. McArthur, 64-675; Lewis v. McNatt, 65-63; Sutton v. Owens, 65-123; Young v. Griffith, 84-715. An action founded upon a contract made prior to the ratification of the C. C. P. is governed by the law and practice existing before that date, although the action is brought since the C. C. P. Merwin v. Ballard, 65-168; Matthews v. Copeland, 80-30. Equity suits, pending at the adoption of the Code, should be proceeded in up to final judgment, according to the old rules of equity procedure. Runnion v. Ramsay, 80-60. In an action of ejectment begun before the adoption of the C. C. P., the plaintiff's right depends upon his possession of the legal title, and he cannot rely upon his equitable title. Young v. Griffith, 84-715. Where a suit in equity was pending in the supreme court at the time of the adoption of the present system of procedure, the superior courts are the proper tribunals to proceed with the cause, and the supreme court can make no order in it, except to remand the papers. White v. Butcher, 97-7. NOTE. All reservations as to causes of action accruing prior to C. C. P. were repealed by Code of 1883, save as to statute of limitations and counting time between May 20, 1861, and January 1, 1870, 22 136 and 137 post., and even those sections are repealed by ch. 113, Acts 1891, as to all suits not begun before January 1, 1893. CHAPTER TEN Legislative power.—Under sections 12 and 22, Art. IV of the Constitu- Sec. 126. Actions. C. C. P., s. 2. 1868-'9, c. 277, s. 2. An action is an ordinary proceeding in a court of justice, Nature of action.-The proceedings under the C. C. P. are substantially courts of common law. The only difference is that under the C. C. P. the summons does not follow but precedes the complaint. Wilson v. Moore, 72-558. Probate of will.-When a will is offered for probate, the proceeding is not a civil action, nor is it a special proceeding, but in rem, to which there are, strictly speaking, no parties. Hutson v. Sawyer, 104—1. Application for dower.-While the assignment of dower is a special proceeding of which the clerk has jurisdiction, yet if any equitable element is involved, which under the former practice would have been cognizable in a court of equity, the superior court in term has jurisdiction, und the application for dower becomes a civil action. Efland v. Efland, 96-458. Assessment of damages for right-of-way.-An application for assessment of damages caused by the taking of lands in the construction of railroads, is not, strictly speaking, either a civil action or special proceeding, but is a summary proceeding, of which the superior court has jurisdiction in vacation or at term. The judge of the court may appoint the appraisers either in term or vacation, while the clerk can do so only in vacation, and then only as representing the court. Click v. Railroad, 98-390. Where, in such a proceeding, it was agreed that issues raised upon the petition and answer should be transferred to the civil issue docket for trial, whatever irregularities there may have been in the conduct of the cause were cured, and the court had jurisdiction to proceed with and finally determine it. Click v. Railroad, 98—390. Taking an administration account.--The superior court has incidental jurisdiction to order the taking of the account of an administrator when necessary to the rights of parties to the action. Rountree v. Britt, 94-104. The superior court has jurisdiction concurrent with the clerk of an action to compel an administrator to sell lands to pay debts. Wilson v. Bynum, 92-717. Sec. 127. Special proceedings. C. C. P., s. 3. Every other remedy is a special proceeding. What are Special Proceedings. 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; Sinclair v. McBryde, 88-438. Also, proceedings for the settlement of the estate of a deceased person. Hunt v. Sneed, 64-176; Sprinkle v. Hutchinson, 66-450; Bell v. 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. The superior court at term has also concurrent jurisdiction of this. Haywood v. Haywood, 79-42; Shields v. Payne, 80-291. 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 v. Saunders, 67–261; Jerkins v. Carter, 70-500. A proceeding in bastardy is a Special Proceeding. State v. McIntosh, 64-607; so, too, a proceeding to remove an executor. Barnes v. Brown, 79-401. A petition for alimony alone, not coupled with a prayer for divorce, is a Special Proceeding. Reeves v. Reeves, 82-348. A proceeding to drain wet lands is a Special Proceeding. Durden v. Simmons, 84-555 A proceeding for partition of lands, whether by actual division or by sale, is a Special Proceeding, and if an issue of fact arises it is sent to the superior court. Capps v. Capps, 85-408. A proceeding to remove an administrator is a Special Proceeding, and the clerk has jurisdiction to find the facts. Murrill v. Sandlin, 86-54; Simpson v. Jones, 82-323. Partition is a Special Proceeding. Bragg v. Lyon, 93-151. Where one tenant in common has been ousted by his co-tenant, who brings an action of ejectment to recover the possession, the_superior court has no jurisdiction to order a partition of the land. Leeper v. Neagle, 94-338. What are not Special Proceedings.—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. An action brought to correct an alleged error in the partition of land, is a civil action, and not a Special Proceeding. Cheatham v. Crews, 81343. But when there is no peculiar equitable element the remedy to correct a mistake in the partition of land is before the clerk. Wahal v. Smith, 82-229. Sec. 128. Division of actions. C. C. P., s. 4. Actions are of two kinds (1) Civil. (2) Criminal. Sec. 129. Criminal action. C. C. P., s. 5. 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. Indictments.-Prosecutions for public offences are now defined as criminal actions. State v. Lupton, 63-483. The terms "criminal action" and "indictment" are synonymous in the Constitution and the C. C. P., and therefore it would be equally regular to entitle a case, "The People v. A. B.-Criminal Action," or "State v. A. B.-Indictment." State v. Simons, 68–378. (2) An action prosecuted by the state, at the instance of an individual, to prevent an apprehended crime against his person or property. Peace warrants.-A proceeding upon a "peace warrant" is now a criminal action. The judges of the superior court are invested with a large |