primary and remedial rights and duties of the parties under any given circumstances; (2) a familiarity with the facts of the particular case, which involves the discriminating with certainty between those facts that are material and issuable and those which are evidentiary; and (3) the ability of writing the English language, to the extent at least of composing a clear, distinct, and brief narrative of these material facts, in such manner that the legal rule which they involve shall be inferred from them with certainty. The first and second of these elements constitute the principles of pleading so far as they form a part of procedure and of juridical science; the third belongs to rhetorical science, and its connection with the law is simply accidental. It is very evident from this analysis that the forms and precedents of pleadings play a much less important part now than they did in the ancient system. When the success of litigant parties depended upon an absolute compliance with technical rules and upon an accurate recital of certain arbitrary and technical phrases, when, in fact, the pleader must rely upon. his memory more than his reason, the use of well-established and approved forms was proper, and, in fact, necessary; but since these features no longer disfigure the civil action and disgrace the administration of justice, the lawyer is not forced to consult such guides; if he has mastered the principles of the art, he needs only to cultivate his power of expression and composition in order to render himself an adept in pleading.

§ 40. The proper mode of presenting the defensive subjectmatter of the action, in addition to these general principles which are common to all pleadings, embraces certain features which are peculiar to the defendant's contention. By combining all the defensive elements which the codes provide, the general and specific denials, the allegations of new matter, and the claims of affirmative relief, the reformed theory far excels in scientific completeness and in practical efficiency the common-law methods which have been so highly extolled by their advocates as the perfection of logic applied in judicial affairs. Here, again, the actual practice in many States has fallen far short of the ideal presented by the legislation; but here, also, the defect is not in the system itself, but results from a failure to apprehend its principles and to enforce its doctrines. The full discussion of this feature of the civil action involves the following subordinate

topics: the use of the specific or the general denial in the formation of issues; the office of the specific denial in the raising of single issues, and its analogies with the special traverse; the office of the general denial, its contrast with the common-law general issue, and the defences which it admits; the doctrine of new matter, and the distinctions between it and the ancient plea in confession and avoidance; the union of different defences in the same answer, and herein of equitable defences interposed to legal causes of action; and the recovery of affirmative relief by the defendant, which includes the special subjects of counterclaim and set-off. The full force and effect of the denial, both specific and general, its power to raise single and definite issues, its superiority to the general issue, and the defences which it admits, are subjects of the highest importance in the judicial practice, but have been too much neglected, both by the courts and by the bar. In developing the reformed procedure into a definite system, the rules which determine the nature of new matter and the effect of the general denial, are more uniform, accurate, and scientific than the analogous rules of the common law, which related to the general issue and the use of special pleas by way of confession and avoidance; and in this respect the superiority of the new system over the old can be shown beyond the possibility of doubt. Some of the defensive elements belonging to the civil action are entirely original. The doctrine of counterclaim, for example, is not a mere extension of the set-off and the recoupment of damages; it is a wholly new and independent conception; and, although objected to and even derided by the early opponents of the reform, it has been bodily adopted in the recent modification of the English procedure, and greatly enlarged in its scope and operation.

§ 41. The last of the distinctive elements or features which constitute the civil action is the judgment. In thus designating it as a constituent of the action, I do not refer to the very relief which is granted to the litigant parties, the recovery of land, chattels, money, or other special benefit. Such final recovery is the remedy to obtain which the action is prosecuted, and, strictly speaking, forms no part of the action itself, but is rather its object or result. The questions which arise in connection with this branch of the civil action do not, therefore, relate to the final right established by the judgment and the relief secured by

it, but to its nature and form as a part of the judicial proceeding, and especially to the modifications made by the codes in the common-law doctrines concerning its unity and indivisibility. The equitable and the legal theories of the judgment, like the same theories of the parties, were in marked contrast and opposition to each other. In equity it was possible, and, indeed, common, for a decree to be rendered which discriminated among the plaintiffs or the defendants, and pronounced in favor of some against the others without regard to any unity or identity of right or interest. The object of the adjudication was to determine the entire controversy according to the individual rights of all the litigants; and if they were before the court as parties to the suit, so that they would be concluded by the decision, it was not of vital consequence whether they were plaintiffs or defendants. In short, the Court of Equity had full power to sever in its decree, to adjudge in favor of some plaintiffs and against others, in favor of some defendants and against others, to confer relief upon the defendants or some of them against the plaintiffs or some of them, and finally to settle the equities among the coplaintiffs or the codefendants as against each other. The common-law theory of the judgment was in every respect different from this. Based upon the intensely arbitrary notion of joint rights and obligations, it regarded the demand of co-plaintiffs on the one side, and the liability of co-defendants on the other, except in a certain well-defined class of cases, as a unit, as utterly incapable of being severed, as something which must be established as to all, or must fail as to all the parties. In no instance was affirmative relief granted to the defendant; recoveries by plaintiff against plaintiff, or by defendant against defendant, were unknown. Since the right of the plaintiffs or the liability of the defendants was conceived of as one and indivisible, the recovery must be against all the defendants equally and in favor of all the plaintiffs alike. As a general rule, therefore, independent of statute and of the few excepted cases, the judgment in a common-law action could not be severed, and be pronounced in favor of some plaintiffs and against the others, nor in favor of some defendants and against others. No principle of the common-law procedure was more firmly established than this; and it represented all the technical and arbitrary notions which characterized the entire system. The codes are unanimous

in their dealing with this subject. In the most direct and comprehensive language they reject these narrow dogmas of the law, and establish the liberal doctrines of equity, which they apply to the civil action without exception or limitation. The statutory provisions are so clear, definite, and certain that no reasonable doubt as to their scope and meaning is possible. Although the purpose of the law-makers, and the theory of their legislation, are so plainly expressed, the courts have hesitated and halted in giving effect to this intent and in carrying out this design. The change made in the ancient order of things is so radical and sweeping that judges sometimes shrink from its contemplation, and seem to regard the statute as though it could not mean what its language declares. This evasion or ignoring of the legislative will has by no means been universal. In many States the courts have conformed to the letter and the spirit of the codes, and have by their decisions established the true principles which can and must be adopted and used in constructing and arranging the practical rules of procedure that regulate the recovery of judgments by means of the civil action.

§ 42. Having described the distinctive elements and features of the civil action which determine its peculiar nature as a judicial instrument for enforcing remedial rights and obtaining remedies, I shall, in conclusion, sketch the plan of the present volume and state the order which will be pursued in its discussions. The general subject of which it treats may be properly styled "The Civil Action according to the Reformed American Procedure." The remaining portion of the work is divided into five chapters, which follow the order of topics already indicated in the preceding paragraphs; and these chapters are again separated into sections and other minor subdivisions. Chapter First is an exhaustive discussion of the fundamental principle upon which the new procedure is based, the abolition of the distinctions between actions at law and suits in equity, and the doctrine of the unity in form and nature of the single civil action created by the codes; Chapter Second treats of the parties to the civil action; Chapter Third, of the presentation of the affirmative subjectmatter or cause of action by the plaintiff; Chapter Fourth, of the presentation of the defensive subject-matter of the action, including the recovery of affirmative relief by the defendant, either by counter-claim, cross-complaint, or set-off; Chapter Fifth treats of

the judgment especially in its relations with the parties. By pursuing the order here indicated the theory of the civil action, so far as it involves doctrines and principles peculiar to the reformed procedure, is presented in an exhaustive manner.

§ 43. In carrying out the plan which has been explained in this introductory chapter, my object has been to furnish for the bar and the bench a treatise which may be useful to them in their professional labors, and for the students of law a text-book which may aid them in acquiring a knowledge of the reformed procedure in all of its essential and fundamental principles. To this end the work is entirely based upon the text of the codes and upon the decisions of courts which have interpreted that text. In no instance have my own opinions or speculations, unsupported by authority, been stated as established rules; whenever such opinions are given, their proper character is plainly indicated. Among the vast number of decisions, many of them conflicting, I have endeavored to distinguish between those which repudiate or neglect the legislative intent and those which follow and give it effect; and upon the basis of the latter class I have attempted to construct a symmetrical and harmonious system which embodies the true principles of the reformed procedure.