(Weight, C. J., dissenting). — Tbe only-question in tbe cause, is whether tbe process by which tbe defendants are called into court, is a legal and sufficient one. Tbe court entertains no doubt, that it is good under the practice and proceedings as they existed prior to tbe enactment of tbe Code. Tbe regular technical process in chancery was tbe subpoena. The statute of 1843, 107, directs a summons to be issued to tbe defendant, commanding him to appear, &c. This writ is more in tbe nature of a summons than of a subpoena. But we think either of those processes, would be good under that statute.
This question is raised principally with reference to tbe provisions of tbe Code in relation to tbe original process, and which is as follows: “ Section 1715.. Such a notice is to be known as tbe original notice, and must inform the defendant of tbe name of tbe plaintiff; that on or before a certain day therein named, a petition will be filed in tbe office of tbe clerk of tbe District Court of —■—- county, claiming of him (here state briefly tbe substance of tbe remedy sought); and that unless be appears and pleads thereto by (stating when by law, or by tbe rules of court, be is required to plead), default will be entered against him, and judgment rendered thereon.”
The appellant has set out in KiiDexbqptions, the original process or writ. We concur in the' opinion, that this process is not bad on. account of being issued by tbe clerk, under tbe seal of tbe court. ' Tbe Code does not say, that tbe notice shall be issued by cither the clerk or party, exclusively ; nor does it say, that tbe clerk shall not issue it; whilst tbe form, section 2518, indicates clearly that the issuing may be by either tbe plaintiff or bis attorney.
Tbe Code, whilst it does not prescribe as a rule, that a writ shall not be issued by tbe clerk, intended only to facilitate tbe transaction of business, by authorizing tbe party to *367issue a notice as therein provided. The objection, then, if any there be, to the writ, must lie in its substance; and there is a difficulty in settling the question in the mind, from its want of distinctness of feature.
It is not for us to doubt the utility of the requirements of the statute. There must be something constituting an original notice, and the nature of the case dictates nearly what it shall be, and the statute gives it a definiteness. It would not be difficult to pursue a course of argument, almost satisfying the legal conscience, that this writ answers the calls of the statute substantially, and yet how different from them it is. We might reason that the day the defendant is summoned to appear, shall be taken to mean the day on which a petition would be on file. But yet it is not doing that which the statute commands. So, we might argue, that to notify him that, if he did not appear, a default would be taken, is notifying him of a legal consequence. Yet the statute commands it. , The original notice is an important paper. Upon this and one other element, rests the whole jurisdiction of the court in a cause. If this were held good, we cannot foresee what farther departures from unquestionable correctness, we shall be necessarily led into. The safer practice is, to keep nearer the shore.
Judgment affirmed.