The weekly North-Carolina standard. [volume] (Raleigh, N.C.) 186?-1869, 1868-09-02
For the Standard.
The Code.-Te What it Applies.

fOr the 6tanQarQ.
The Code--Te What it Applies.
To what actions does the Code apply is
question to which every practitioner is now
now called upon to answer. Discussion is
rife in reference to it, and a great deal of I'M
necessary blame has been thrown upon the
Commissioners for the doubt which seems to
overhang the matter. There is no question
that the Commissioners endeavored honestly
to answer this inquiry in the provisions of
Title /. of the Code of Civil Procedure, in
the manner which was thought most accept
able to the State, and especially the probes
sion.- 1t was undoubtedly their intention to
render the provisions of the Code applicable
to- ...t.sf... H.. l 3.
1. factions commenced after its ratifca-
q ton, not springing from previous contracts.
Q. To actions coming under the Ordinance
ofthe Convention of March 18th, 1868, as to
form merely.
8. To other causes of action springing out
of contracts made prior to the ratification of
the Code, as to form, but not as to time of
Judgment, and afterwards, both as to form
and to time.
a. To suits pending, as far as may be me-
cessary in order to prevent failure of jus
tice, Gas, if might suggest, in the case of
equitable defences to actions at law now
pending and which are otherwise lost, and
not being provided for) .ss-, art
This seems to have been the controlling
idea of the Commissioners, confirmed and
strengthened by the requests and protest ia
uons of various members or the bar. Some
of the members of the General Assembly, as
the writer well knows, were particularly
strenuous in their demands for these pro-
visions
In order to show that this was clearly. the
intention of the Commissioners, We give be-
low the section in reference to this subject,
as it left the hands of the Commissioners and
passed the General Assembly:
fi TITLEI.
SEC. 8. To @hat actions these enactments
are applicable.
. 1. Civil actions which at the approval,
by the government of the United States, of
the Constitution, adopted by Convention
of this State, ON the sixteenth day of March,
1858, 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.
2. All civil actions which shall be COM
mepced after the ratification of this act not
founded on contract made prior to the rat
ification.
3. [All civil actions commenced prior to
the ratification of this act. or which shall be
commenced hereafter; fer causes of action
included within the provisions of an ordi-
nance entitled, An ordinance respecting
the jurisdiction of the Courts of this State"
ratified on the fourteenth day of March,
1868, shall be governed In respect to the
practice and procedure therein, by the pro-
visions of that ordinance and by the exist
ing laws as far as they may be except as to
form.
4. All actions commenced prior to the
ratification of this act or which shall be
hereafter commenced founded on o contract
made prior to the ratification of this act, and
not embraced in the ordinance above men
toned, shall be governed 10 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. and subsequent to Judgment
shall be governed by the enactments of this
act.
In passing the pons asinorus of enroll
ment and engrossnnent, or somewhere on the
journey betwixt 'cup and lip" after its pas
sage and before its ratification, mishap be-
+ fell this section of the oct. The third sub.
!, division, given above in brackets, was en-
tirely omitted, and does not appear in the
copy on file in the Office of the Secretary of
State at ali. 1t is, therefore, not part of
the law, but this failure is in no manner at
9. tribntable to any lache on the part of the
Commissioners They did their duty, SO far
as the attempt to make the Code as unob-
y jectiop9ble as they could, to the profession
was concerned. If either they, or the pro-
fession had been little more discrimina-
ting in their study of the Constitution, there
would have been less blame, and no grounds
s for it all. as f.5 ~ -.
The provisions of the Constitution upon
the subject are plain, direct, and unequivo.
cal They are as follows: 2i-itsz-
SEC. 1, Art ~. The distinction between
actions at law and suits in equity, and the
nforms Of all such actions and suits shall be
abolished, and there shall be in this State
but one form of action for the enforcement
or protection of private rights or the redress
Of private wrongs, which shall be denomi-
mated civil action; and every action pros
ecuted by the people of the State as party,
against person charged with public Of
fence for the punishment OF the same, shall
he termed criminal action. Feigned is
sues shall also be abolished, and the fact at
issue tried, by order OF the court, before
jury.
- SEC. 20, Art. ~. Actions lat law and
suits in equity, pending when TINS oonstitu,
tiops shall go into effect, shall DC transferred
to tho Courts having Jurisdiction thereof,
without prejudice by reason OF the change