The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1870-01-11
TIE NEW CODE OF PROCEDURE.
In what Respects it Differs from the
Old Form of Practice and Proceed
inSs at LnV.

ing letter from Mr.. A. b. knoWlt0n, WHICH VIII!
be read with interest not only by the legal
fraternity, but by the public generally. Mr.
Knowlton has practiced law for many years
in New York, and is familiar with the code Of
that State, from which the new code Of South
Carolina has been borrowed; and his letter
gives what seems to be clear and practical
idea of the changes which it inaugurates in
the practice and proceedings at law:
To the Editor oftle Orungeb.rg Ne,oS:
SIR-As the adoption of the Code OF Proce-
dure recently submitted to the Assembly
seems TO be beyond peradventure, lew
brief outlines Of practice so radically ulle1-
cnt from that which at present obtains may
not be entirely unintcrcsting to my brother
members of the profession-probably not even
TO the public at large, whose rights viii, oy the
new system, be rendered capable, In many
and important respects. OF more prompt, GER
tain and c1lectual enforcement :,
All distinctions between common law ana
equity are abolished, save as to the relief ask
ed, and slight difference in the form of the
summons; and all remedles are 10 De sought
either by action OF by special proceeding. !.
All actions are commenced by The service Oh
summons, which is in all cases substantially
the same, containing, after the name Oh the
court and the title OF the cause, simply notlce
to the defendant, to answer the complaint, ana
to serve CODY thereof on the planti1s ati0f-
ney, at his office, within twenty days after the
service of the summons; and that II lie iall 50
to do the plaintiff will either take Judgment
against him for the amount claimed, or apply
to the court for the relief demanded, as tile
cause OF action may require; the former ID case
the action is one on contract Tor the recovery
Of money only, the latter In all other cases. @
The summons is subscribed by the plalntlls $
ott0rnnv and rnnnirpS no teSfe.
The complaint, which correspondS to the
present declaration, may be either served on
the defendant, or filed In the office oi the
clerk of the court, and either at the time oil
serving the summons, or within such time
thereafter as the defendant shall, after service
or appearance, demand by notice in proper
| form.
The plaintiff has twenty days after service
of the answer (Which corresponds to the pres
| ent pled) within which to reply, and thence
| forth the pleadiugs are designated as at COM
mon law. But as the allegations in the reply
are TO be deemed traversed by the defendant
without rejoindcr, further pleading IS gene
rally unnecessary to bring the parties to issue,
After issue Joined, the date of which is that OF
the service of the last pleading, the cause
may be placed upon the calendar Tor issue
docket by either party, and be brought on Tor
trial upon notice of trial served fourteen days
before the first day of the term.
The flnc-spun cobwcbs of special pleading
are swept from their accustomed corners, and
pleading rs science is no more; for the COM
pllaint, answer, and other pleadnSs are freed
| from all the technical rules. They must con-
| tain 'splain and concise statement oil tile
facts constituting cause Of action or defence,
and nothing more. Demurrer lies where the
facts are insufficient, rs well as Tor other
reasons appearing on the face OF tile pleading;
a motion TO strike out is the proper course
| oil n ra
tincnt Allegations in the complaint not con-
troverted by the answer-or in the answer not
controverted by the rcply-arc admitted. II
| the defendant fails TO appear within the twenty
DAYS, the plaintiff is entitled to Judgment,
&hlch in many cases may be entered lInme-
dately, the amount OF damages beng admit,
ted by the default; in others, after assessment
of damages by the clerk, or sherif's jury, or
upon proper application to the court. II the
| plaintiff falls to reply within the limited time
| the defendant is entitled TO snch Judgment as
is his right, upon such facts in the answer as
required reply; e: g. in the case OF q counter @
claim exceeding the plaintiffs claim, judSS-
ment for the amount OF such excess, &c.
The provisions of the New York Code, (ot
| which, am informed, the one now before the
Assembly is, with few local alterations, an
exact copy,) as TO arrest and bail, have already
become law in this State, in their principal 1ea-
lures, by virtue of the act of September, 1868,
|
shall be no arrest In civil actions SaUe as there
| in prouided. But as this act Is framed under
the new system, while the practice Is In all
| other respects, aS yet, unaltcred, 1t would
seem that an attempt to carry out It's provi-
sions might as the law now stands, give rise
to some troublesome questions. Any such dlf-
ticulty, however, will be avoided, ana the pre-.
sent incongruity obviated, by the adoption OF
the Code in the proposed form.
The remedies afforded by the common law
actions of trespass, rcplcvin, trovcr and de-
tlnue, for the recovery OF personal property or
its value, are all obtainablc under the new SyS-
ten. in single form OF action, and bya COL
lateral proceeding" In that action, ITO recover
the possession of personal property The
complaint alleges the cause OF acton, and, II
damages only arr desired, the case takes its
usual course; but Ii the plaintiff seeks spe-
cfc recovery of the chattel, the sheriff, upon
being served with sufficient bond or under
taking, and with the proper affidavit on Inc
part OF the plaintiff endorsed with req,llsl-
lion to that effect by the PLAINTIFFS attorney, is
required to take the property from the defend
ant and deliver it TO the plaintiff, and The de-
fendant may demand 4 rcdelivery to himself,
bv giving sufficient undertaking, to the effect
that if tile return be finally adjudSed to the
plaintiff he will so return it, and that Tic
plaintin shall be paid such sum rs may, for any
cause, be recovered against the defendant In
inc uCllOU. lilc uloO
for wrongfiIlly or unjusuy taking, OBTAINING,
injuring or eloigning the property Which Is
the subject Of the action.
This proceeding Is almost precisely similar
to the practice in rcplcvin which obtains in
PENNSYLVANIA, of which the learned American
editor of Stephens on Pleading remarks 18th
Am. Ed. D. cXi.) "Pcnnsylvania alone, per-
hups, among the States of this Union, possesses
the most r..tional and cflectual method of pro-
cecding in actions of replcvin that could pos
sibly be devised. 1t meets every possible
case in which relief can be expected from this
form of action, without any Of the inconren-
fences, the fear of which has prevented its eX-
tension elsewhere. This action lies, in that
State, in every case where the right to the
possession of goods and chattcls is in contro-
versy, whether they have been fOrcibly taken,
or are otherwise diverted or kept away from
their right owner. Nor does the party in pos
session suffer any Inconvenience or run any
risk from this proceeding. How
this practice came to be introduced in that
State does not appear, but 1t has been found 50
beneficial that it may be considered the COM
mon law of the Statc.'
The provisions of the Code rs to attachments
afford remedy as well as q preventive in
many instances where the plaintiff is at pres
cnt rcmedilcss, and. for an agricultural COM
munity, are, perhaps, quite as comprehensive
as is necessary. They have given very gene
raj satisfaction to the profession in New York,
although in some cases proving rather too
strict and technical for the sudden and urgent
necessities Of a great commercial city.
,SOpCiHl DrOcoe(linIS are all proceedings other