the action of trespass, etc., and, under the authority given the chancellor to issue other writs to meet causes of action similar to those already provided for, there followed the numerous writs and actions of trespass on the case, which have come to be resorted to in the larger class of grievances.

§ 3. Equitable Actions'-How Commenced.

But it was still found [even after the statute of Westm. II. (13 Edw. I. c. 24)] that the subject often suffered a wrong when no remedy, or no adequate remedy, could be afforded him under any of the ancient writs, or under those that had been authorized consimili casu. Hence, in such cases, the king, as the fountain of justice, came to be applied to, through his chancellor [and thus grew up the separate chancery jurisdictior],10 for specific relief, and the practice grew up of giving the petitioner the relief adapted to his griev ance, and without much regard to that which could be obtained in common-law trials, the chancellor sometimes going so far as to enjoin the execution of judgments rendered by the king's judges. The

II. (13 Edw. I., c. 24) was passed, by which it was enacted that "whensoever from henceforth it shall fortune in chancery that in one case a writ is found and in like case falling under like law, and requiring like remedy, is found none, the clerks of the chancery shall agree in making the writ, or adjourn the plaintiffs into the next parliament; and let the cases be written in which they cannot agree, and let them refer themselves to the next parliament, by consent of men learned in the law a writ shall be made, lest it might happen after that the court should long time fail to minister justice unto complainants."]

8 It should be unnecessary to inform the intelligent student that in ordinary actions the original writ has long been disused in England, and is hardly known in any of the United States. The first process is a "summons," and in certain cases, and in some states, a "capias ad respondendum."

9 [For a complete history of the growth of the "court of chancery," see "History of the Court of Chancery" by A. H. Marsh. Rex v. Hare, 1 Strange, 150; 1 Spence, Eq. Jur. 335-338.]

10 [Blackstone says that this provision (referring to 13 Edw. I.), with a little more accuracy in the clerks of chancery, and a little more liberality in the judges, by extending rather than narrowing the remedial effects of the writ, might have effectually answered all the purposes of a "court of equity," except that of obtaining discovery by the oath of a defendant. 3 Bl. Comm. 51.]

student of our jurisprudence has noted the long controversies between the courts of common law and of chancery, and their settlement by the well-defined jurisdiction of each. In the courts of law, as those held by the king's judges are called, although the practice has been often modified to meet the ends of justice, the names and forms of the personal actions have been preserved; while in chancery there never was an original writ-no distinguishing technical names are given to bills of a different nature-but the petition11 is first presented [as the commencement of the suit in equity], setting out the facts in detail, and asking for a subpoena against the defendants and for the relief which is sought. The answer, instead of being a brief formula, like a plea at law tendering issue, is required to be under oath, to be specific, and to make full discovery as to every fact alleged in the petition. The common-law and equity proceedings, in some states, are still substantially preserved.11

§ 4. Name and form of actions under the code.

The system of code pleading, so called, though varying somewhat in detail in the different states where adopted, is one in its general aims, and the first blow given by it to the common-law and equity systems was to abolish names and forms of actions. The language of the New York Code of Procedure was as follows: 13 "The distinction between actions at law and suits in equity,11 and

11 [The earliest case that has been discovered in which we have the complete proceedings on a bill addressed to the chancellor is the case of Hale v. Hyncley, in the reign of Henry V., in which case the plaintiff sought to be restored to the possession of lands of which he claimed to have been wrongfully disseised. 1 Law Quart. Rev. 443.]

12 [See infra, § 141.]

13 [New York was the first of the states to take strong ground against the common-law system of pleading, and adopted the "Code" in 1848.]

14 [The provision that there shall be but one form of action was not intended to abolish the distinction between law and equity. Such a construction would lead to infinite perplexities and endless difficulties. The innovation extends only to the "form" of the action and the "pleadings." The distinction between those actions has not been abolished, but remains the same. The principles by which we are to determine the rights of the respective parties litigant remain the same. Dewitt v. Hays, 2 Cal. 463; Bonesteel v. Bonesteel, 28 Wis. 245. But the method of proceeding is now the same in

the forms of all such actions and suits heretofore existing, are abolished, and there shall be in this state but one form of action for the enforcement and protection of private rights, and the redress of private wrongs, which shall be denominated a civil action." The following is from the Ohio Code: "The distinction between actions at law and suits in equity, and the forms of all actions and suits heretofore existing, are abolished, and in their place there shall be hereafter but one form of action, which shall be called a civil action." Missouri was one of the earliest States to follow New York, and uses the following language: "There shall be in this State but one form of action for the enforcement or protection of private rights, and prevention or redress of private wrongs, which shall be denominated a civil action;" thus, the distinction is in effect abolished.

§ 5. Continued.

The practice codes of Indiana, Kentucky, Wisconsin, Iowa, Minnesota, Arkansas, Kansas, Nebraska, California, Oregon, Nevada, North Carolina, South Carolina, Connecticut, Colorado [and the territories of Arizona and Utah], so far as concerns pleadings, correspond substantially with those of the states named in the last section, and have all, in language of similar import, abolished the old forms of actions, and (except that in Kentucky, Iowa, Arkansas, and Oregon, proceedings in equity are still kept distinct from actions at law) they have abolished the distinction between actions at law and suits in equity. All are called civil actions, and, so far as it can be done by legislation, the forms and classification of actions, with the exceptions named, are swept away, so that we no longer have.actions of assumpsit, of trespass, of replevin, bills in chancery, etc. The plaintiff, without giving any specific name to his proceeding, must state the facts which show the wrong, and if, under the

both classes of causes. Williams v. Slote, 70 N. Y. 601; Stevens v. Mayor, 84 N. Y. 296; Chinn v. Trustees, 32 Ohio St. 236; Troost v. Davis, 31 Ind. 34.] 15 [The Codes of Iowa, Kentucky, Arkansas, and Oregon provide that proceedings in a civil action may be either ordinary or equitable. The plaintiff, in these states, may bring equitable proceedings wherever the chancellor before the Code had jurisdiction, and must do so where that jurisdiction was exclusive. Code Iowa, §§ 2507, 2508; Bullitt's Code Ky. §§ 5, 61; Gantt's Dig. Ark. §§ 4453, 4454; 1 Hill's Ann. Laws Or. p. 130, § 1.]

16

rules of law, his statement entitles him to relief of any kind, he will have a good complaint or petition. But it is only the form and the name of the action that is abolished. Distinctions between the character of different actions necessarily arise from the nature of the wrong which is suffered and of the relief which is sought, and these cannot be abolished.

§ 6. Classification not dispensed with.

Although the names and forms of actions have been thus abolished, it must not be supposed that the time spent in learning the distinctions indicated by them has been spent in vain."

The mere formulas are of little present practical consequence; but, aside from the importance of knowing our legal history, including the history of the law of procedure, most of these names will be in constant requisition as indicating the nature of the grievance, the evidence required, and the measure of relief. The whole case often clusters around the name; and the action is just as much an action of trover, or of replevin, or of ejectment, as though so called in the pleading. When the statute says that there shall be but one form of action, form, and not substance, is spoken of. Without classification there is no science. Such distinctions as exist in the nature of things must be recognized, and they are equally recognized whether a specific name be given to the suit or action, with a corresponding formula, or whether they arise from, and are known only by, the nature of the grievance and the character of the relief.

16 [A party cannot be sent out of court merely because his facts do not entitle him to relief at law, or merely because he is not entitled to relief in equity, as the case may be. He can be sent out of court only when, upon his facts, he is entitled to no relief, either at law or in equity. Grain v. Aldrich, 38 Cal. 514, 520; 2 Mich. Law J. p. 379.]

17 [We must remember that the changes made by the Code do not affect the rights of parties or the remedies formerly given for a violation of those rights, but affect alone the form of action or the means by which the remedy may be obtained. The same facts that would have entitled a plaintiff to recover at common law will entitle him to recover under the Code; but, as we shall see when we come to consider the question of pleading, his remedy does not depend upon the form of his complaint or the name by which his action is called. He is entitled to just such relief as the facts stated in his complaint entitle him to, whether it be legal or equitable.]

§ 7. Continued-Illustrated by Suits in Chancery.

In proceedings in equity the original application is called a bill; there never was an original writ; there is simply a subpoena, which is the same in all ordinary cases-yet the distinction at common law between different classes of actions is not more clear than it is in equity, although in the latter it exists only in fact, and not. in name and form. Thus we have bills for injunction, bills of interpleader, bills to reform instruments in writing, bills for specific performance, etc. The object of this provision of the code is, not to destroy classification-that could not be done if attempted— but, as in equity practice, to make it natural and scientific, by leaving it to be founded alone upon the character and object of the proceeding. Thus, with great propriety, we still use many of the common-law terms--no longer as essential names of specific forms of action, but rather as instruments of a rational classification-as convenient technics that indicate the character of the wrong and object of the proceeding, and save the necessity of long descriptive phrases.

§ 8. The Distinction between Assumpsit, Debt, and Covenant not Preserved.

There is no reason why we should still speak of, and distinguish between, the actions of debt, of covenant, and of assumpsit. These distinctions were artificial; each action was based upon contract, and they should be classed under one head; for it does not matter, as regards the character of the action and nature of the remedy, whether the agreement be verbal or in writing, and if the latter, whether it be sealed or without a seal. The law may impose greater obligations upon persons whose agreements are under seal, or may give their contracts greater operative force, than if made by parol; and there is also a distinction, as regards their validity, between a class of contracts which are written and those which are verbal; but so far as actions are concerned, those which are based upon contract are substantially of the same character and should be classed together. The right is created by consent, by an obligation voluntarily assumed, and the wrong is in its breach.