13

12.-Parties designated Plaintiff and Defendant.

In such action the party complaining shall be known as the plaintiff, and the adverse party as the defendant.

13.-Actions on Judgments-when they may be brought.

No action shall be brought upon a judgment rendered in any court of this State, which shall be rendered after the ratification of this act, except a court of a Justice of

No attempt has been made to assimilate the civil action of the Code to actions at law, or to superimpose upon it the forms or rules of pleadings which prevailed in such actions, except in one or two cases, in which it has been intimated, apparently without much deliberation, that the common law rules of pleading still apply. See 291 note, and the cases there cited.

The distinction between suits in equity and the forms of such suits, and the civil action has not been so clearly drawn as is desirable. The court seem to have adopted the view that the civil action was an extension of equity procedure, and have been governed in almost all their decisions by the analogies to be drawn therefrom. As, however, they have logically construed the contemporaneous provisions of the Constitution, as providing but one mode of trial, the objections to this view are much less than they would otherwise have been.

In the making of parties, the pronouncing of several judgments between them, whether plaintiffs or defendants, the interpleading of persons not parties of record, the joinder of legal and equitable causes of action or defences and in a just apprehension of the nature and office of the counterclaim, the decisions of this State may challenge comparison with those of any other in a fair, manly and logical application, and clear exposition, of the true principles of the reformed procedure. In no other which has fallen under my observation has there been such an absence of evasive subtlety or so little attempt to wrest its provisions from the plain purpose of the law-makers. Taking the Code as clearly intended to be a new system of procedure, they have applied its provisions, in the main, without regard to the speculations of others and with a remarkable freedom from the bias arising from previous professional study and experience.

Perhaps the liberality and breadth of view with which they have construed the Code have led them to overestimate what they have termed the "liberality of the method of procedure now in force," and to permit a laxity of pleading and encourage a facility of amendment, without noting the fact that the Code, while liberal in allowing amendment, is rigorously careful in allowing such amendment only upon terms. Only two instances, I think, are to be found in which error, inadvertence or mistake can be remedied, except upon terms. The Code was not designed to encourage laxity but accuracy. It does not favor negligence but promotes vigilance. The circumstances under which it went into operation here-the Constitution taking effect on the 3d of July, 1868, and the Code on the 24th of August of the same year-gave the bench and bar but little opportunity to familiarize themselves with its provisions before they were called upon to put it in practice. This, undoubtedly, laid the foundation of that habit of indulging error and condoning negligence which has marked our practice. That this will gradually disappear is nearly certain. As the details of practice become more generally

the Peace, between the same parties, without the leave of the Judge of the court, either in or out of term, for good cause shown, on notice to the adverse party.

After a judgment fixing an administrator with assets and a return of nulla bona thereon, the proper mode to subject him personally, is by motion on notice, and not by an action. McDowell v. Asbury, 66-444.a

15.-Feigned issues abolished.

Feigned issues are abolished; and instead thereof, in the cases where the power now exists to order a feigned issue, or when a question of fact not put in issue by the pleadings, is to be tried by a jury, an order for the trial may be made by the Judge, stating distinctly and plainly the question of fact to be tried; and such order shall be the only authority necessary for a trial.

"Feigned issues" defined and the effect of their abolition discussed." Harkey v. Houston, 65-137; Abrams v. Cureton, 74-523; Blake . Askew, 76–325.b

understood by the profession, they will naturally insist upon a more strict compliance with them.

It is somewhat remarkable that the court, by construing our constitutional provisions so as to make a jury trial in all actions a matter of right, seems likely to have overcome the only impediment hitherto unsurmounted in the development of the civil action. Mr. Pomeroy says: "Remedies and Remedial Rights, 64.-Absolute unity in the judicial methods by which remedies are to be obtained, is practically impossible so long as the jury trial is required in certain classes of causes and dispensed with in others. In respect to all other features the theoretical unity is attainable."

He intimates also, that this is only to be effected by restricting the right of trial by jury to criminal actions. Our courts have avoided this difficulty and without serious inconvenience, especially such inconvenience as was for a time apprehended, by extending the jury trial to all actions. This is an entirely new step, though a strictly logical one, in the developement of the unified action which was rendered possible only by the peculiar provisions of our Constitution in regard to jury trial, taken in connection with the section now under consideration.

a Compare also, ?? 45, 160, 256, 319, 362 and 367, post, and the cases there cited. b While the Court put the dismissal of this case on the ground that it is a "feigned issue," there is nothing in the case to show the fact that it was one. Reade, J., says, "This is evidently a feigned issue based upon a wager, to test the validity of certain bonds, said to have been issued by the State." This may be true, but how the Court could become possessed of the fact does not clearly appear either from the case as reported or from the original papers, which have been specially inspected to ascertain upon what facts the opinion of the Court was based,

TITLE IV.

LIMITATION OF ACTIONS.

84 n.

*^48

Chapter I. General Provisions.

Chapter II. Limitations of Actions to recover Real Property.

Chapter III. Limitations of Actions other than for the recovery of

Property.

Chapter IV. When limitation to take effect.

CHAPTER I.

GENERAL PROVISIONS.

SEC.

SEC. 16. Time of commencing actions | SEC. 17. Period of limitation; objection must be taken by answer.

in general.

16.—Time of commencing Actions in General.

The provisions contained in chapter sixty-five of the Revised Code, entitled "Limitations," are repealed, and the provisions of this title are substituted. This title shall not extend to actions already commenced, or to cases where the right of action has already accrued, but the statutes in force previous to the ratification of this act shall be applicable to such cases; and in cases where the right of action has already accrued, but the action has not been commenced, the said statutes shall be applied according to the subject matter of the action, and without regard to the form.

The time between May 20th, 1861, and January 1st, 1870, is not to be counted in ascertaining the period necessary to have elapsed in order to bar an action. Johnson v. Winslow, 63-552; Howell v. Buie, 64-446; Plott v. W. N. C. R. R. Co., 65-74; Smith . Rogers, 65-181; Williams v. Williams, 70—189; Faison v. Bowden, 74-43; Edwards v. Jarvis, 74-315; Hawkins v. Savage, 75–133; Lippard v. Troutman, 72-551.

Contra, as to contracts made after 1868. Austin v. Dawson, 75-523.

A right of action which accrued before the adoption of the Code is governed by the statutes of limitation then in force. Williams v. Williams, 70-189; Knight v. Braswell, 70-709; Libbett v. Maultsby, 71-345; Woodhouse v. Simmons, 73-30; Barham v. Lomax, 73-76; Ellis v. Scott, 75-108; Covington v. Stewart, 77-148; Batts e. Winstead, 77-238.

The same rule applies with regard to interest accruing upon such a cause of action. Knight v. Braswell, 70-709.

{17.-Effect of Limitation—Objection must be taken by Answer.

Civil actions can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, except where, in special cases, a different limitation is prescribed by statute. But the objection that the action was not commenced within the time limited, can only be taken by answer.

Objection must be taken by answer. Pegram v. Stoltz, 67-144; Privett . Calloway, 75-233; Green v. N. C. R. R. Co., 73-524. When the objection that the action has not been commenced within the time limited is taken, it must be proved, if not apparent from the complaint, by the party seeking advantage from it. Lewis v.

Latham, 74-283.

A defendant will not be allowed to plead the statute of limitations when the action has been delayed at his request. Daniel v. Com'rs of Edgecombe, 74-494.

In an action in the nature of a creditor's bill, every creditor may plead the statute against the claim of every other. Woodsworth & McDowell o. Davis, 75-159.

{18.-When the State will not sue; Thirty years possession ; Twentyone years possession under colorable title.

The State will not sue any person for, or in respect of, any real property, or the issues or profits thereof, by reason of the right or title of the State to the same;

1. When the person in possession thereof, (a) or those un-. der whom he claims, shall have been in the adverse posses

a As to what constitutes possession, see, also, Tredwell v. Reddick, 1 Ired. 56; Flanniken v. Lee, 1 Ired. 293; Williams v. Buchanan, 1 Ired. 535; Bynum v. Thompson, 3 Ired. 578; Bynum v. Carter, 4 Ired. 310; Lenoir v. South, 10 Ired. 237; Berryman v. Kelly, 13 Ired. 269; Morris v. Hayes, 2 Jones 93; Blackstock v. Cole, 6 Jones, 560; Ring v. King, 4 D. & B. 164.

sion (b) thereof for thirty years, such possession having been ascertained and identified under known and visible lines or boundaries; and such possession, so held, shall give a title in fee to the possessor.

2. When the person in possession thereof, or those under whom he claims, shall have been in possession under colorable title for twenty-one years, such possession having been ascertained and identified under known and visible lines or boundaries.

If there has been an adverse possession for any time less than thirty years it is not a circumstance to go to the jury from which alone or with other circumstances to infer thirty years adverse possession. Melvin . Waddell, 75–361.

In proving title out of the State the plaintiff may avail himself of possession by any others though he fail to connect himself with them.

Ibid.

Where a widow puts a son-in-law in possession of land belonging to the estate of her deceased husband, and he sells and makes title in fee, having none himself, held, that neither his possession nor that of those claiming under him was adverse to the heirs of the husband, or those claiming title under them. Ibid.

Where a party ran a fence across the neck of a peninsula, partly on his own land and partly on another's and opened a gap on his own land so as to allow his own cattle to go on the peninsula and exclude others unless they crossed the river, held, not to be an adverse possession unless the fence was made with the avowed purpose of taking possession of the peninsula. Osborne v. Johnston, 65-22. {19.—Such possession valid against claimants under the State.

All such possession as is described in the preceding section, under such title as is therein described, is hereby ratified and confirmed, and declared to be a good and legal bar against the entry or suit of any person under the right or claim of the State.

? 20.-Seven years possession under colorable title.

When the person in possession of any real property, or those under whom he claims, shall have been possessed of

b As to what constitutes adverse possession, see, also, Murray v. Shanklin, 4 D. & B. 289; Montgomery v. Wynns, 4 D. & B. 527; Gilchrist v. McLaughlin, 7 Ired. 310; Powell v. Felton, 11 Ired. 469; Loftin v. Cobb, 1 Jones, 406; Smith v. Reid, 6 Jones, 494; Everett v. Dockery, 7 Jones, 390: Ring v. King, 4 D. & B. 164. As to conflicting possession under different grants or lappage, see, Williams v. Buchanan, 1 Ired. 535; Williams v. Miller, 7 Ired. 186; Bryson v. Slagle, Busb. 449; Brown v. Potter, Busb. 461; Baker v. McDonald, 2-Jones, 244; Mo Cormick v. Munroe, 3 Jones, 332.