land, or of specific chattels, may still be declared, and the possession thereof recovered; pecuniary compensation may still be obtained for the breach of contracts and for wrongs done to property, person, and character; proceedings may be reviewed and reversed as by certiorari; acts may be enforced as by mandamus; the vast range of special reliefs conferred by the Court of Chancery is retained. The problem is to classify, arrange, define, and describe these remedies so that the particular one appropriate to a given state of facts may be seen at once by the practising lawyer and by the judge. Heretofore this classification, arrangement, definition, and description have depended entirely upon the peculiar and artificial means and instruments by which the remedies themselves could be obtained, by the use of which they were sought from and conferred by the judicial tribunals. When at one blow all these peculiar and artificial means and instruments are swept away, the very basis of the classification disappears, and with it the classification itself. To retain a classification founded upon facts which no longer exist, facts which, from disuse, are rapidly passing away from the recollection of the older lawyers and were never known to the younger members of the bar except as the result of curious and antiquarian study, is worse than useless; it can only produce confusion, disorder, and uncertainty in the administration of justice. When the legislature has attempted to introduce simplicity into the mode of judicial trials, so that the ultimate primary rights and duties of the litigant parties may be presented for investigation and decision unconnected with, and untramelled by, any collateral difficulties growing out of questions as to the proper form of the mere means and instruments which the party has chosen by which to present his claim to the judges, a retention by lawyers and judges in any manner and for any purpose of these old means and instruments, and of the arbitrary distinctions between them, and of the arbitrary rules controlling them, must interfere in some measure with the intent of the legislature, and may utterly defeat the beneficial purpose which it had in view. I shall have occasion to return to the subject, and shall point out in detail the evil effects of combining the old forms and modes of thought with the new system which the reformatory legislation has introduced.

SECTION THIRD.

REMEDIES AND REMEDIAL RIGHts under the REFORMED AMERICAN SYSTEM OF PROCEDURE.

I. The Reformatory Legislation.

§ 28. In the year 1848 the Legislature of New York adopted the Code of Procedure. The fundamental principles of this code, so far as it is now necessary to notice them without going into detail, are the following: (1) The abolition of the distinction between suits in equity and actions at law, and the distinctions between legal and equitable procedure, so far as such an amalgamation or consolidation is possible with the judicial institutions which have been retained; (2) The abolition of all commonlaw forms of action, and the establishment of one ordinary, universal means by which rights are maintained and duties enforced in a judicial controversy, called a "civil action;" (3) The application to this" civil action" of the familiar equitable rather than legal rules, methods, and principles, so far as practicable, and especially in reference to the parties, the pleadings, and to the form and character of the judgment. It is evident, from the most cursory examination of this code, that its authors, and presumably the legislature, intended that the various provisions which they introduced in reference to the parties to an action, to the pleadings therein, and to the judgment which might be rendered, and which were a concise statement of the well-settled doctrine of equity relating to these subjects, should apply fully and freely to all actions which might thereafter be brought, and should not be confined to actions that, under the former practice, would have been equitable. Whether the courts have at all times recognized and carried out this plain intention of the statute may well be doubted. I have been careful, in the above statement as to the union of law and equity. The language of the code is as follows: "The distinctions between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished; and there shall be in this State hereafter but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which

shall be denominated a civil action." A subsequent provision,2 based upon the clause in the State constitution which preserves the jury trial" in all cases in which it has heretofore been used," 3 recognizes the fact that the jury trial must still be retained in all actions which were before denominated legal, with the unimportant exception which formerly existed, namely, where the trial will require the examination of a long account, and thus, in express terms, prevents an absolute identity in the judicial proceedings which result in remedies that would have been legal and in those which result in remedies that would have been equitable. As I have already said, the perpetuation of the very fundamental element of difference between the trial at law and the trial in equity and the perpetuation cannot be avoided as long as the constitution remains unchanged in this respect - prevents a complete removal of the differences between legal and equitable procedure and the absolute union of law and equity into one homogeneous system. How far the differences between the final remedies which courts of law granted exclusively, namely, the recovery of a specific tract of land or of a specific chattel, and the recovery of money in the form of pecuniary compensation,— and the infinite variety of special remedies which courts of equity were accustomed to grant, may in themselves prevent such a perfect union, I shall discuss and attempt to determine in a subsequent chapter.

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§ 29. The New York Code, in respect to the fundamental principles and provisions which I have stated, has been adopted in twenty-two other States and territories of this country, in the States of Ohio, Indiana, Wisconsin, Iowa, Minnesota, Kentucky, Missouri, Kansas, Nebraska, Nevada, Oregon, California, North Carolina, South Carolina, Florida, Alabama, and in the territories of Washington, Montana, Idaho, Dacota, Wyoming, Arizona. I need not now compare these different State and territorial codes in their details; it is enough for my present purpose to say that they all embody the same three fundamental principles. It is true that in Kentucky, in Iowa, and in Oregon, the abolition of the distinction between legal and equitable actions is not nominally so absolute as in New York, and the other States and territories named in the foregoing list. The following are the provisions of

1 N. Y. Code of Proced. § 69.

2 Ibid. § 253.

Const. of N. Y. Art. I. § 2.

1

the Iowa statute: "All forms of action are abolished in this State; but the proceedings in a civil action may be of two kinds, ordinary or equitable." "The plaintiff may prosecute his action by equitable proceedings in all cases where courts of equity, before the adoption of this code, had jurisdiction, and must so proceed in all cases where such jurisdiction was exclusive." "In all other cases, except in this code otherwise provided, the plaintiff must prosecute his action by ordinary proceedings." "An error of the plaintiff, as to the kind of proceedings adopted, shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings and a transfer of the action to the proper docket." "The provisions of this code concerning the prosecution of a civil action apply to both kinds of proceeding, whether ordinary or equitable, unless the contrary appears." The corresponding clauses of the Kentucky Code of Practice are identical in language with those found in the Iowa statute.2 It is plain from these citations that the difference between the New York system and that of Kentucky, Iowa, and Oregon is nominal merely; in fact, the latter simply expresses in words what the former necessarily implies. A plaintiff in Kentucky, Iowa, or Oregon, at the commencement of his first pleading complaint or petitionnames the proceedings, ordinary or equitable, as the case may be, and exactly the same rules of pleading, of parties, and of judgment apply to the action in either case; there is no difference of form or method. If it is an ordinary proceeding, it is tried before a court and jury; if equitable, before a court consisting of the same judge, but without a jury; and the only result of a mistake in properly entitling the proceeding is to transfer it from one court calendar or docket to the other.

§ 30. The reformatory legislation first introduced by New York in 1848, has up to this time been adopted in nearly one-half of the States and in six of the territories. It may well be regarded, and I shall treat it, as the American system. While changes may be made in its details, while minor variations do exist in some of the States, it is simply impossible that any of the broad principles upon which it is founded will ever be abandoned; so far as the subsequent legislation in other States differs from that

1 Code of Iowa, Revision of 1873, §§ 1859, §§ 1, 3, 4, 5, 13. The same is sub2507, 2508, 2513, 2514, 2520. stantially true of the Oregon Code.

* Kentucky Code of Practice, ed. of

originally enacted in New York, it carries out these universal principles to their logical results with greater freedom. Additional States will surely accept this American system, and it will probably become universal throughout the country. The act of the British Parliament, already referred to, is based upon the same general principles. Although the practice authorized by that statute will be very different in many respects from the American mode of procedure, yet it will involve an abolition of the common-law actions, and a consolidation of law and equity not only as respects the tribunals, but as respects the judicial means and instruments by which remedies are to be obtained.

II. The General Nature of the Civil Action.

§ 31. Since the original inauguration of the American system in 1848, no attempt has been made to rearrange and reclassify remedies and remedial rights in accordance with the new order of things. The profession and the courts have been left to work their way in the dark; and the consequence has been an utter confusion and uncertainty, which have gone far to defeat the beneficial purposes of the reform, and to create a conviction in the minds of many very able lawyers and judges that the change was a positive evil. Although the statute is most peremptory in its terms, going to the very root and overturning the growth of ages, yet in the actual administration of justice it often seems to be forgotten that a new era has commenced; it often seems to be assumed that the sharply defined separation of legal and equitable methods and the various common-law forms of action still remain in all their arbitrary requirements. This confusion partly results from the fact that the practising lawyer has no hand-book adapted to the present system analogous to the familiar treatises upon actions, parties, and pleadings, which were his ready and safe guides under the former dispensation; and partly from the dogged unwillingness shown in some quarters to accept and conform to the new order of things. I have already shown that the modes of classifying remedies and remedial rights, and the whole practical treatment of this department of the law, based upon the artificial foundation which has been swept away, are wholly inapplicable to the modern procedure, and I need not return to the discussion of that particular point. The truth of the statement is evident without further argument.