court; to secure by adequate means a trial or hearing of the contested points; to obtain a judgment or determination adapted to the justice of the case; and to effect the enforcement of that judgment, by vigorous and efficient means. This object. is not peculiar to any form of remedy, whether it be legal or equitable, or whether it fall within any one of the subordinate classes of actions, as they now exist at law, but is common to all. That it can be practically attained in every species of controversy, so far as the mere formal and progressive steps in the conduct of suits is concerned, we are thoroughly convinced; and with a confidence, we trust not unbecoming, we present the subsequent provisions of the proposed act, as well adapted to carry out that object.

Without intending to anticipate the discussion of its provisions in their appropriate places, we may here briefly advert to some points, in which the assimilation of law and equity procedure has been supposed by some, to be attended with insurmountable difficulties.

The first of these is the subject of pleading. The distinguishing feature now existing between pleadings at law and in equity is, that in the former, the professed object is, by concise and formal statements of conclusions of fact, to bring the cause to a distinct issue, either of fact or of law,-while in the latter, the facts of the case may be stated without technicality, and with a minuteness of circumstantial detail, tending to establish the proposed conclusion of fact, in a manner forbidden by the rules of pleading, which prevail in the courts of law. This distinction, so far as equitable pleading is concerned, has resulted mainly from the peculiar power of a court of equity in enforcing discovery in aid of the relief sought, and in the necessity which existed for minute detail, in order more effectually to probe the conscience of the defendant. At law, with some unimportant statutory exceptions, no such power exists; and hence, nothing but conclusions of fact have either been permitted or required in pleading. We propose to reduce the system of pleading to one of allegation merely, without reference to discovery, in the mode which will presently be sug

gested; so that the same form of allegation may be adapted to cases which have heretofore been distinguished as legal and equitable. And in order to prevent any prejudice which might otherwise result from the necessity now existing in equity, for the kind of pleading to which we have referred, we present a series of enactments, providing that in all cases, either party may obtain from the other a discovery under oath, of all facts necessary to the prosecution or defence of the action.

The second point of objection urged to the proposed assimilation of practice, is the mode of trial. The constitution has provided by the second section of article first, that "the trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever; but that a jury trial may be waived by the parties in all civil cases, in the manner to be prescribed by law;" and by the tenth section of the sixth article, that "the testimony in equity cases shall be taken in like manner as in cases at law." Under these sections, the legislature have power to provide liberally for references in all cases in which that right has heretofore existed, as well in cases of a strictly legal character, as in those of an equitable nature, which they deem can be more conveniently investigated in that mode. In reference to the exercise of this power, we have provided for modes of trial by a jury, by the court and by referees, in such a manner, as to render this branch of procedure beneficial and convenient.

The third consideration connected with this subject is, the existing differences, in the form of judgment, and the means of enforcing it, peculiar to the courts of law and equity. Judgments in the former are, with very few exceptions, compensatory, while in the latter, in a majority of cases, they embrace specific relief peculiar to each case. It is a leading feature of our proposed plan, to require in all cases a judgment adapted to the established rights of the parties; and we can see no difficulty in incorporating into it, as a portion of an uniform system of practice, a form of execution which shall adapt itself to the judgment.

Independently therefore, of the express declaration of the legislative will, requiring us to provide "for an uniform course

of proceeding in all cases, whether of legal or equitable cognizance," we can see no difficulty which cannot be readily overcome, in the accomplishment of this object; while in accordance with the direction thus given us, we can perceive no just reason, for preserving a distinction in the modes of proceeding, the tribunal in either case being the same. The legislature, in adopting this provision, no doubt acted upon the well known fact, that in many cases, without reference at all to the merits of the controversy, parties had been turned out of courts of equity, because they should have gone into courts of law, and out of courts of law, because they should have gone into equity. They no doubt also correctly interpreted the constitution, which had abolished a separate court of equity, and transferred general jurisdiction in law and equity to the supreme court, when they instructed us to provide for a system of procedure which should obviate the evil referred to, and secure the protection of rights, without reference to unnecessary and unmeaning forms.

The second branch of the section in question, proposes to abolish the distinctions between the several forms of actions at law, and of suits in equity.

At common law, the grand division of civil actions was into real, personal and mixed; real actions being such as were brought for the specific recovery of lands, tenements or hereditaments; personal being those, which were brought for the speeific recovery of goods and chattels, or for pecuniary compensation for the non-payment of a debt, or for the breach or non-performance of a contract, obligation or duty, or for the commission of any other private injury, of whatever description; and mixed actions being such as partook, in some degree of the nature of both the former, and therefore properly reducible to neither of those definitions, and which were brought both for the specific recovery of lands, tenements, and hereditaments, and for damages for injuries sustained in respect to property of that description.

In the revision of the statutes of this state, (2 R. S., 3d ed., 390, sec. 1,) these general divisions of actions underwent some slight change, and were distributed into;

1. Such as relate to real estate;

2. Those which may be brought for the recovery of any debt or demand, or for the recovery of damages only:

3. Those which may be brought for penalties or forfeitures. 4. Suits in courts of equity.

This provision was designed to comprehend under the head of actions relating to real estate, those which were formerly known as real and mixed actions; and under the denomination of personal actions, those which were brought for the recovery of a debt or demand, or of damages only, or for penalties and forfeitures, as well as those which sought the specific recovery of personal property. When it was adopted, real and mixed actions existed in this state as at common law; and, though of rare practical occurrence, were extremely numerous, and attended with forms of an exceedingly intricate and complicated character. Under the general classification above referred to, however, all actions relating to real estate were reduced to the heads of ejectment, proceedings to compel the determination of claims to real property, partition, writ of nuisance, waste, trespass on lands, and proceedings to discover the death of persons upon whose lives any particular estate may depend. (2 R. S. 3d ed. 399–439.)

These actions and proceedings, excepting the writs of nuisance and waste, which are still in their nature and mode of enforcement, of a mixed character, and trespass on lands, which, although relating to real property, is in its nature and form of proceeding, personal, are substituted in place of the ancient real action; it being provided by the chapter of the Revised Statutes just cited, and containing this new classification, that all writs of right, writs of dower, writs of entry and writs of assize, all fines and common recoveries, and all other real actions known to the common law, not enumerated and retained in that chapter, and all writs and other process heretofore used in real actions, not specially retained, should be abolished.

Personal actions, as they existed at common law, and as they are still retained in this state, are divided into actions ex con

tractu and ex delicto. These again are subdivided, the former into actions of account, assumpsit, covenant, debt, annuity and scire facias; and the latter into trespass, trespass on the case, and replevin.

The action of account is maintainable against a guardian in socage, bailiff or receiver, to compel an account of profits or of moneys received by the defendant; and also in the case of two joint mercantile partners; it being neccessary, however, that the plaintiff should name himself as merchant, and the defendant also as merchant, and should charge the defendant as receiver of the moneys of the plaintiff. It may also be maintained, by statute, by one joint tenant or tenant in common of real estate, against another for receiving more than his just share or proportion.

Assumpsit is the form of remedy, by which a compensation in damages may be recovered, commensurate with the injury sustained by the breach or violation of any contract not under seal nor of record, whether express or implied, written or verbal, for the payment of money, or for the performance of an act not prohibited, or the omission of the performance of an act enjoined by law.

Covenant is the appropriate action for the recovery of damages, for the breach of an engagement under seal,—to do or not to do a particular thing, as to pay a sum of money, to build a house, or the like; and in this respect the rule is the same as in respect to parol contracts,-that the act which is done must not be in contravention of, and the act omitted must be one, the performance of which is enjoined by law. As to what constitutes an agreement under seal,-or as it is denominated, a specialty, in contradistinction from a simple contract, which term comprises contracts not under seal or of record, it is to be observed, that the mere putting a seal to an instrument, even though it be a promissory note, changes the nature of the contract, and makes that a covenant, which would otherwise have been a simple contract or promise.

Debt is the appropriate action for money due on a legal liability, or upon a simple contract, express or implied, or upon