what such a theory involves; what features or elements are possible, and what impossible. The conclusions thus reached may be summed up in the following propositions. The theory of an absolute union does not affect the primary civil rights and duties, nor the final remedies and the rights thereto; it leaves the primary rights called legal and those called equitable, and the reliefs bestowed for their violation, substantially untouched. It is confined, therefore, to the judicial methods by which these remedies are to be obtained. An absolute unity in these methods, by means of a single form of civil action adapted to the enforcement of all civil rights and the recovery of all civil remedies, is theoretically possible. Such an absolute unity is, however, practically impossible so long as the jury trial is required in certain classes of causes, and is dispensed with in others, since that institution creates an essential difference in the manner of conducting actions, and in their very framework, which cannot be obliterated by any statutory declaration. In respect to all other features and elements of an action, that is, except so far as the jury trial produces a modification, the theoretical identity in all judicial proceedings is practicable, and may consist in the mode of commencing the action, in the method of stating the cause of action or the defence, in the manner of establishing the facts by evidence, in the rules relating to parties, and in those relating to the awarding of relief and the rendition of judgment. Having thus exhibited a complete theory or pure ideal of such a unity in methods as would remove all distinctions and create but one judicial instrument for the protection of all civil rights and the pursuit of all civil remedies, I shall next inquire how far this perfect theory has been worked out by the legislatures, and especially by the courts in their interpretation of the statutes which have established the reformed American system of procedure in the various States. SECTION SECOND. The General Principles as to a Union of Legal and Equitable Methods which have been adopted by the Courts; how far such a Union has been practically effected by Judicial Interpretation of the Statutes. § 65. Ir is not my purpose in the present section to discuss in order the particular practical questions that have arisen in the construction of those provisions of the State codes of procedure and practice acts which abolish the distinction between legal and equitable actions; namely, the combining of legal and equitable causes of action and defence in the same suit, the interposing of equitable defences to legal causes of action, the granting of legal remedies where the pleadings had contemplated equitable ones, or of equitable remedies where the pleadings had contemplated legal ones, and the like. I intend rather to ascertain, if possible, and state the general principles of construction which the courts have finally adopted and applied in the settlement of these and all other similar questions which have arisen from this most distinctive and important feature of the reformed procedure. These principles are fundamental; they underlie the whole process of judicial interpretation; they shape the entire action of the courts in building up a system of practical rules out of the broad and somewhat vague enactments of the statute. A knowledge of these controlling motives and opinions which have guided the judges in their work of construction is of the highest importance; with it we may attain a systematic and harmonious result; without it we shall certainly be left in a chaos of conflicting decisions. In pursuing this inquiry, I shall follow the order developed in the preceding section, and shall ascertain how far the interpretation given by the courts conforms to, and how far differs from, the theory of absolute unity therein set forth. § 66. The adoption of the Code of Procedure by the Legislature of New York in 1848 was undoubtedly a shock to the opinions and prejudices of lawyers who had been accustomed to regard the former system as perfect in principle; and, while it met with a strenuous opposition from many members of the bar, it is not surprising that some of the judges also for a time. found it difficult, if not impossible, to yield obedience to the letter even of the statutory requirement, much less to accept its spirit with zealous approval. Opinions are to be found, delivered at an early day by very eminent and able judges, sometimes sitting in the court of last resort, which, if taken as correct expositions of the statute, would have reduced the great reform to the empty change in a few words; the ancient names would have been abolished, but all the substance, all that was represented by those names, would have remained in full force and effect. According to this view there had been no union of methods into one common mode of proceeding, no abolition of any real distinctions between legal and equitable actions, because such a result is simply impossible of attainment. Since the 1 See Reubens v. Joel, 13 N. Y. 488, 493, and Voorhis v. Child's Ex'ors, 17 N. Y. 354, 357-362, per S. L. Selden J. As these opinions of Mr. Justice Selden furnish the clearest and ablest statement of the peculiar theory of interpretation mentioned in the text, I quote from them at some length. In Reubens v. Joel, he says, p. 493: "What are the distinctions between actions at law and suits in equity? The most marked distinction obviously consists in their different modes of relief. In the one, with a few isolated exceptions, relief is invariably administered, and can only be administered, in the form of a pecuniary compensation in damages for the injury received; in the other the court has a discretionary power to adapt the relief to the circumstances of the case. By what process can these two modes of relief be made identical? It is possible to abolish one or the other, or both; but it certainly is not possible to abolish the distinction between them. The legislature may, unless prohibited by the constitution, enact that no court shall hereafter have power to grant any relief except in the form of damages, and thereby abolish suits in equity, or that all courts shall have power to mould the relief to suit the particular case, and thereby virtually abolish actions at law as a distinct class. To illustrate by a single case they may provide that when the vendor of land who has contracted to sell, and has received the purchase-money, refuses to convey, the vendee shall have no remedy but an action for damages, or, on the other hand, that he shall be confined to a suit for specific performance; but it is clearly beyond the reach of their powers to make these two remedies the same. Another leading distinction between common-law actions and suits in equity consists in their different modes of trial. The former are to be tried by a jury, the latter by the court. Can the legislature abolish this distinction? They might, but for the restraints of the constitution, abolish either kind of trial, or reclassify the classes to which they apply; but they cannot make trial by jury and trial by the court the same thing. It is plain that the only way in which the declaration contained in § 69 can be made good, is by abolishing both the forms of trial and the mode of relief in one or the other of the two classes of actions. When this is done, and not until then, shall we have one homogeneous form of action for all cases. Has the legislature power to do this? [He here cites certain clauses of the New York Constitution recognizing the existence of equity.] Will it be contended, in the face of these provisions, that the legislature has the power to abolish the jurisdiction of the courts either at law or in equity? The constitution gives to the Supreme Court general jurisdiction both in law and in equity. Can this be taken away? It authorizes the legislature to "alter and regulate" both jurisdictions. Does this mean that it may abrogate them? It is, in my judgment, clear that the legislature has not the constitutional power to reduce all actions to one homogeneous form; because it could only be done by abolishing trial by jury, with its inseparable accompaniment, compensation in damages, which would not only conflict with the provisions that preserve trial by jury, but would in effect subvert all jurisdiction at law, as all actions would thereby be rendered equitable; or by abolishing trial by the court, with its appropriate incident, specific relief, which would destroy all equity jurisdiction, and convert every suit into an action at law." p. 498. "But the legislature, in the specific provisions adopted by it, has not attempted to carry into effect the general declaration made in § 69." He cites §§ 253, 254, which require the jury trial in all actions in which it had heretofore been used, and provide a trial by the court for all other actions, and §§ 275, 276, which regulate the relief to be granted, and proceeds: "Instead of being abolished, the essential distinctions between actions at law and suits in equity are by these sections expressly retained. Actions at law are to be tried by a jury, suits in equity New York Constitution provides that the Supreme Court of that State shall have general jurisdiction in law and equity, and speaks in one or two other places of "equity," it has been said from the bench that a statute abolishing the distinctive features of equity would be unconstitutional, and that the New York code, so far as it purports to produce that effect, is void. The system which this school of judges has constructed out of the reformatory legislation is the following. The distinctions be by the court. Damages are to be given as heretofore in the former, and specific relief in the latter." utory enactment of the rule which had always prevailed in equity, and must, from the nature of the actions, of the 1 Selden J., in Reubens v. Joel, 13 tribunals which pass upon the issues, and N. Y. 494, 495. 2 Selden J., in Reubens v. Joel and Voorhis v. Child's Ex'ors, ubi sup. The latter case was an action against the surviving members of a partnership and the executors of a deceased member to recover the amount of a promissory note made by the firm. The complaint was in the usual form; it contained no allegation that the survivors were insolvent or that judgment had been recovered against them, and prayed the usual judgment for the amount of the debt. On demurrer by the executors, on the ground that no cause of action was stated against them, the complaint was dismissed, and the plaintiff appealed. The Court of Appeals placed their decision upon the ground that an equity action could not be maintained against the personal representatives of a deceased partner to recover a firm debt without averring and proving that the survivors had been proceeded against at law to execution, or that they were insolvent, and that this rule had not been changed by the code. Mr. Justice Selden, while agreeing with this position, went far beyond it. The plaintiff insisted that the action was legal against the survivors, and that the executors were proper parties defendant under § 118, which provides that 'any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein." The learned judge answers that although the language of this section is broad enough to cover both legal and equitable actions, yet it is a mere stat of the judgments rendered, be confined to suits in equity, leaving actions at law to be governed by the same rules in respect of parties which prevailed before the code. He says (p. 358): "It is supposed by some that it was intended to abolish by the code all distinctions, not only in form, but in substance, between legal and equitable actions; and it must be conceded that many of its provisions taken by themselves might seem to indicate such an intent; and yet nothing can be clearer than that the legis lature has wholly failed to carry into effect such an intention if it existed. On the contrary, the code expressly retains the principal differences which distinguish the two classes of actions. Actions at law were to be tried by a jury, suits in equity by the court. This distinction remains undisturbed. . . . Now it is plain that, if we would make of the code a consistent system, we must construe it, not in view of the general proposition, obviously untrue, that the distinctions between actions at law and suits in equity are abolished, but in the light afforded by a comparison of its various provisions." He proceeds to point out the practical difficulties in the way of applying the equitable doctrine as to parties to all common-law actions, and reaches the conclusion that, as the code recognizes equity suits and legal actions, the provisions of § 118 must be limited to suits in equity, and adds (p. 361): It is worthy of remark that the construction here contended for is that which has been of necessity to a very great extent practically put upon the various provisions of the code. Cases are found so naturally tween law and equity inhere in the very nature of the subject, and cannot be abolished. The legislature may, unless restrained by the constitution, abrogate the law or equity, but cannot destroy the distinctions between them. The language of the statute, however, is not broad enough to effect such a change; it is confined to external acts and forms, to the methods of obtaining remedies, to the incidents of actions, and not to their substance. Even when thus restrained, there are necessary elements in the subject-matter which cannot be affected by legislation, and which limit therefore the general phrases of the code. Assuming that primary legal and equitable rights and duties remain unaltered, essential differences must exist in the actions brought to enforce the legal and the equitable classes of rights, and also the various species of legal rights. For this reason the substantial features. and characteristics of the various actions at law must and do subsist, and the rules which are based upon these facts must and do continue in operation. The names "covenant," "debt," "trespass," "assumpsit," "bill in equity," and the like, have been abandoned; but all the things which these names represented are left in their essentials exactly as before the attempted reforms. This theory of interpretation reduces the Code of Procedure from its position as the embodiment of a new system for the administration of justice to the level of a mere amendatory act regulating the minor details of practice. The explanation here made of it is now useful only as a matter of history; it never became controlling; the opinions which it represents were those of individual judges rather than of courts, and they have been repeatedly and completely overruled by tribunals of the highest authority.1 to arrange themselves according to the classification which existed prior to the code that the distinction between legal and equitable actions is nearly as marked upon all the papers presented to the court as formerly. The same names are not used, but the nature of the cases has not changed, nor have the distinctions been abrogated. Very few attempts have been made to carry into practical effect the idea of blending legal and equitable causes of action in one common proceeding. Were it necessary to the decision of this case, I should be prepared to hold that that clause of the constitution which provides that 'there shall be a Supreme Court having general jurisdiction in law and equity' presents an insuperable barrier to any legislative merger of the jurisdictions." In accordance with this theory, the same learned judge in various other cases held that the legal and equitable actions are still to be distinguished in their modes of pleading, in the rules as to parties, and in those respecting the rendition of judgment. In short, he would preserve all the substance of the two classes, and only give up the names. 1 See the comments upon Mr. Justice Selden's opinion in Reubens v. Joel, made by Comstock J., in N. Y. Ice Co. v. Northwest. Ins. Co., 23 N. Y. 359, 360. |