(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.

(dissenting). — I cannot concur in the conclusion arrived at by the majority of the court in this case. How far the Code has modified or changed the chancery practice, I do not regard it necessary to determine, in order to a decision of this question. That a notice issued by the clerk of the court under its seal, and running in the name of the state, would be as good as if directed by name, and signed by the plaintiff or his attorney, is conceded. I am also clear, that notwithstanding the provisions of the Code, it would not be irregular for a complainant in chancery, to bring the defendant into court by what is familiarly known as the subpoena, or summons in chancery. He may have his election, to use the old writ or subpcena, or the original *368notice contemplated in tbe Code. In either event, however, these things are essential to be contained in such writ or notice, assimilating, as I conceive is proper, the subpoena in its requisites, to the notice of the Code. There should be a complainant named, to whom the respondent is to answer. The most important change, in this view of it, being to require-a more specific statement of the remedy which the complainant seeks. I think this writ contains these essential requisites. There is a complainant to whom defendants are to answer. Then, instead of using the old form, of requiring' them to answer a “ bill in chancery,” they are to answer a “ suit in chancery for a specific performance of a contract.” It will be observed, that in. this particular, it follows the exact language of the form provided for in section 2518. As to the correct time and place at which they are to answer, it gives the name of the court, and the time and place at which it is to be held. It is true, it does not require them to answer by the morning of the second day of the term; but this court held, in the case of-v. French, decided at the December term, 1853, that a notice to answer on the first day, was good under the Code. This writ does not state, either, in express language, that there is .then, or when there will be, a petition on file. But, in the first place, I think from the - language, it may be fairly inferred, that it had been filed. And if this was not so, still if it was on file ten days before the next term, I think it would be sufficient, under the decision made in the case of McCaffree v. Guesford, ante, 180. I also consider, that sections 1715 and 2518, must be construed together. Section 1715 gives a statement of what should be contained in the notice, and then the subsequent section, 2518, gives the form of the notice, and provides that such, or equivalent, forms shall be sufficient. I cannot but hold this writ to be equivalent, in its terms and import, to such form. And to so hold, I think, is more in accordance with the whole tenor of the Code, which was designed to avoid delays, unnecessary forms and technicalities, and come at once to the merits and *369■substantial rights of tbe parties. Not to further enlarge, I most respectfully, for these reasons, dissent from the majority opinion.