manner, and the practical application thereof to the special instances and subordinate details of the civil action, are also gradually disappearing; the traditions of the past, and the ancient doctrines and methods of the common law, are passing away from the memory of the bench and bar, and a closer conformity with the fundamental conceptions of the reform legislation is plainly to be seen in all the States. While, therefore, among the decisions which have been pronounced since the inauguration of the American procedure in New York in 1848, there are many, even of the highest courts, which must be rejected as utterly wrong, and as opposed to the very letter of the codes, and very many others which must be taken with extensive and important limitations; yet from the materials thus furnished by the tribunals of the several States, from a combination and comparison of their results, the true doctrines and correct rules relating to the civil action may be ascertained, collected, and arranged in such a manner as to present a complete system, a system that shall represent the spirit and design of the reform legislation, and that shall at the same time be founded, not upon any mere speculations of the author, but upon the solid and sure basis of actual judicial authority and precedent.

§ 36. As the abolition of the distinctions between actions at law and suits in equity is a fact so broad in its nature that within it are included all the other essential features of the civil action, its full significance must be accurately determined, if possible, at the very commencement of our contemplated work. I have shown in a preceding paragraph that, at a stage in the historical development of the Roman law, the "ordinary" jurisdiction of the magistrates was abolished, and all forms and species of judicial controversies were combined in the "extraordinary" jurisdiction. The result of this change was a complete amalgamation and unification of law and equity, so that the Roman civil law, as it is embodied in the Codes of Justinian, presents no trace of the dual nature which characterizes our own and the English jurisprudence, and which did at one time characterize that of Rome. The codes of procedure do not attempt to effect so radical and sweeping an alteration; the distinctions between law and equity are not abolished; these two departments of the municipal law, comprising their distinctive and peculiar primary rights and duties, and furnishing their special remedies, are left un

touched by the legislation, and it is plain that they cannot be consolidated into one so long as the jury trial is preserved and made compulsory. While the change does not extend to the groups of rights and duties themselves which are collectively called "law" and "equity," nor to the remedies which have been used in maintaining such rights and duties, but is entirely confined to the judicial instrument by means of which the remedies are sought after and obtained, in its operation and effect upon that instrument it is complete. All distinctions between the action formerly used to enforce equitable rights and obtain equitable remedies and those formerly used to enforce legal rights and obtain legal remedies are removed; and one judicial proceeding, with the same essential principles and features, is to be used in enforcing all species of rights and obtaining all kinds of remedies. The revolution thus made in the ancient modes of procedure was radical and thorough; it was startling and, in fact, shocking to lawyers who were familiar only with the notions and methods of the common law. Irrespective of its remote effects upon parties, pleadings, and judgments, the immediate and direct consequences of the change involve the combination of legal and equitable causes or rights of action, legal and equitable defences, and legal and equitable reliefs in one single suit. If, therefore, this fundamental principle introduced by the codes be honestly followed to its logical results, if its spirit be faithfully accepted as the true and only guide in the work of constructing a system of practical rules for the bench and the bar, there should be no such distinctive names used in legal terminology as "legal action" and "equitable action," certainly no "action at law" or "suit in equity," since with strict accuracy of expression no action can be considered in itself as either legal or equitable; but, to avoid an inconvenient circumlocution, these descriptive names will doubtless be retained. Among the topics embraced in the discussion of the general principle are the union of legal and equitable primary rights or causes of action in the same controversy, the union of legal and equitable reliefs or remedies, the granting an equitable in place of a legal relief or a legal in place of an equitable one, the interposition of an equitable defence to a legal cause of action, and the obtaining a legal remedy upon an equitable primary right or estate. All of these special features are included within the broad principle which the reformed procedure

adopts as its very foundation; and in developing a complete theory of the civil action they must be exhaustively discussed, with all the aid which can be obtained from judicial decisions. When the fact is fully apprehended that the distinctions between actions at law and suits in equity are abolished, and that there is but one civil action for the maintenance of all rights and the pursuit of all remedies, and when the subordinate elements directly connected with and resulting from this fact are clearly perceived, all real difficulties at once disappear; the entire system of doctrines and rules concerning the nature of the civil action, and its use as an instrument for remedial purposes, is seen to result as a natural and necessary consequence from this one source, and to be scientifically perfect as well as practically efficient in its completeness and unity.

§ 37. Immediately connected with the abolition of all distinction between legal and equitable actions is the abrogation of the common-law forms of action. A single civil action sufficient for all purposes requires both of these modifications. No real difficulty can arise in giving effect to this particular provision of the codes. The common-law divisions of actions were, to a very great extent, arbitrary and formal; they could easily have been abandoned while the more substantial line of separation between the action at law and the suit in equity was preserved. While the courts have never hesitated nor suggested a doubt in the enforcement of this special legislative enactment, its full meaning has sometimes been misapprehended. Individual judges have declared that all the ancient legal actions still exist in their substance, with simply the loss of their names. This is, of course, a palpable error; for all the marks which distinguished one action from another-for example, "covenant" from "debt" or "assumpsit," or "trespass" from "case" or "trover" technical, and formal, and have been swept away. action remain, and the remedies which could be recovered by the use of any particular action may still be secured by means of the civil action which the codes have substituted in the place of all the previous forms; when under given circumstances an injured party might, by resorting to some one of the various actions at law, have obtained a judgment for land, or chattels, or money, he can, under exactly the same circumstances, recover a like judgment by the means which the reformed procedure furnishes to him.

were external, The rights of

To this extent, and no further, whatever was substantial in the old forms of action has been preserved. If the letter and the spirit of the codes are obeyed, all the rules of procedure which were based solely upon the technical and arbitrary differences of form among the ancient common-law actions must be regarded as abrogated with the actions themselves.

§ 38. The other essential elements or features which belong to the civil action, and inhere in its nature, which determine what it substantially is, rather than indicate how it must be prosecuted through the courts, are the parties, the mode of presenting the affirmative subject-matter, or cause of action, by the plaintiff, the mode of presenting the defensive subject-matter by the defendant, and the nature and form of the judgment. The doctrine of parties is of great practical importance; and it is the one concerning which there has been by far the most confusion, uncertainty, and contradiction among the decided cases. The common-law and the equity theories of parties stood opposed to each other in sharp contrast; the legal rules were clear, well defined, and intensely technical and arbitrary. In their place the codes have substituted a few broad principles, stated in a very general form without exception or limitation, which are conceded to be a statutory enactment of the doctrines which prevailed in courts of equity. If these provisions of the statute are accepted according to their literal import, and are applied to the civil action when used for any and all purposes, for maintaining a legal as well as an equitable right, a complete revolution will be wrought in the judicial methods of enforcing legal duties and pursuing legal remedies; all civil actions, so far as concerns the parties and the rules which control their selection, will be assimilated to suits in equity. This total change in the nature of actions has been regarded with disfavor by the judicial mind; and the courts have, on the whole, failed to carry out the plain intent or even the letter of the statutory requirements. Some judges have boldly taken the ground that these general provisions of the codes can only be applied to equitable suits, and that legal actions are left under the operation of the common-law doctrines. Other judges, while admitting that the equity doctrine, as to parties, has been introduced as a constituent element of the new procedure, have shrunk from its application in numerous instances, and a confusion without rule or guide has been the inevitable result.

If the object of the reform is to be accomplished; if simplicity, certainty, and directness are to be attained in the modes of procedure; if controversies are to be determined upon their merits, and not upon any collateral and technical issues, the uncertainty which now exists to so great an extent concerning the parties to the civil action must be removed, and some plain and correct principle must be firmly settled and invariably applied. In arriving at and establishing this universal principle, two alternatives only are possible. The provisions of the codes may be confined exclusively to equitable actions, and legal actions may be left under the control of the ancient common-law rules, so that no change whatever in relation to parties would be effected by the reformed procedure; or these provisions may be followed in their letter and their spirit, and rigorously enforced alike in all species of actions, in which case the common-law rules, so far as they differ from the equitable, would be entirely abandoned, and would wholly disappear from the system of procedure. The former of these alternatives is possible; but it would be an act of judicial legislation, a substantial repeal of the statutory enactment. The second is in plain accord with the spirit and even letter of the codes; although it involves a bold departure from some of the most distinctive notions of the common law, it is nevertheless entirely practicable and even easy of accomplishment.

§ 39. The mode of presenting the affirmative subject-matter or cause of action involves both the general principles of pleading introduced by the codes and their special application on the part of the plaintiff. The theory of pleading contained in the new procedure is often, and perhaps generally, regarded as the most important element of the reform, as the central thought from which all the other portions of the system have been derived. As already stated, I consider this to be an erroneous opinion. Having once established the fact of a single civil action adapted to all rights and remedies, and having abolished the distinctions between legal and equitable proceedings, the method of pleading was a natural and, indeed, necessary result. It is in the pleading, however, that this primary conception of the reformed system of procedure is realized and made practical; and the two are so mutually dependent, so closely united, that they cannot be separated, and each exhaustively discussed by itself. The theory of pleading, according to the new procedure, is perfect in its scientific