"To understand this question," said he, "it was necessary to look at what these things called law and equity are, as contradistinguished from each other. In strictness, there could not be said to be any such distinct systems as law and equity. They were more properly called two distinct systems of practice; the one called the practice at law, and the other the practice in equity. By the practice at law, a man was only enabled to recover a simple money demand-with the two exceptions of ejectment and replevin. In ejectment, the plaintiff may recover land-the thing itself; in replevin, he may recover a chattel-the thing itself; but in all other respects, a party can recover in the law practice, nothing but a sum of money. And to recover that, he must adopt one or other of five or six particular forms of action-very technical and special in form, and in which the pleadings are almost invariably fictitious, filled with false allegations from beginning to end. They bore, to be sure, a certain conventional relation to a truth, which they were supposed to represent; and which conventional relation was perfectly well understood by learned lawyers, and tolerably well understood by the profession generally, but which no layman would understand. For instance, if one were to rob him of his watch, the forms of pleading, at common law, would allow him to waive the force, and to bring an action for the value of the watch, as upon a purchase. He could charge, that on a certain day, he sold and delivered to the defendant, a certain watch, in consideration whereof, the thief promised to pay, when he should be thereto requested, as much as such watch was reasonably worth; and that it was reasonably worth two hundred and fifty dollars. The defendant would answer, non assumpsit-that he did not so promise. Every word in the declaration would be false, and the plea would be manifestly true; and yet there was no judge in the land, that would not instruct the jury, that though this was a very outrageous act, the party whose watch it was, had a right to waive the wrong, and to have twelve men say, on their oaths, that the defendant did promise to pay, what the watch was reasonably worth, in manner and form as he had alleged, and that their verdict must be for the plaintiff. This was a very fair specimen of the fictions which existed in the common

law modes of pleading. He could consume hours, in giving similar instances; but one was sufficient. Indeed, almost throughout, the allegations in the declaration are false to every common. and ordinary intent. But they were said to be technically true; because, by construction of law, the relation between the fiction in the pleadings, and the truth it represented, was well understood by lawyers and judges; and between them, they could instruct the jury, to bring in such a verdict, as worked out the ends of justice.

"It might be asked, why such forms were adopted. Their origin was of remote antiquity; but there was no doubt of the true reason. Jurors were originally very ignorant, and it was necessary, by special and strict forms, to bring down questions in issue to a very nice and simple point. And these pleadings were modified, from time to time, until they had received the character that was now impressed on them. They received their form, at that period, when a scholastic pedantry had overrun and perplexed, with its arbitrary rules, every branch of science. And hence, of course, a very special system of pleadings came to be adopted. It was, however, wholly inadequate to the ends of justice; and because it was, the system of equity jurisprudence was adopted to supply its defects. That was equity practice. Under legal practice, a man could not get a discovery from his adversary; could not reach documents; nor get specific relief, except in a few cases.

"To obviate these defects in the law, a clerical chancellor introduced the civil law practice; a practice, which, however disfigured in some places by unnecessary forms-however disfigured at this day by extreme prolixity—was nevertheless, in its own nature, flexible, highly convenient, and capable of being made to answer all the ends of justice. There was literally no form about it. The party stated his case, and asked the relief he desired; and the court, if he proved his case, gave him that relief. Under this practice, any suit for any kind of remedy may be brought. It was always quite easy, by bill in chancery, to sue on a promissory note. Yet, as the English courts of common law had jurisdiction of the action, and chancery had no jurisdiction where relief could be had at law, chancery was never permitted

to take cognizance of such cases. Thus, from the inappropriateness, of the forms of the common law, to answer the ends of justice, this equity practice was introduced. But it was not permitted to act, except in cases of necessity. Thus, the two systems grew up together. And at the period of the revolution in England, they had courts of common law and courts of chancery, as we have them now; each exercising an extensive jurisdiction, and, as a legal writer of eminence, by a typographical blunder, was made to say, in regard to the court of chancery, an expensive one.

"We adopted the old English forms; and hence, we have at this day, these two distinct forms of practice. He supposed they could be abolished, and one form made to answer every purpose. He thought the keeping of them separate, was mischievous. In no country of Europe, except Great Britain, did these two separate forms exist. The chancery or civil law forms obtained throughout the continent of Europe, over the whole civilized world, wherever justice was administered in regular form. They obtained in Scotland, for all the purposes of remedial justice. They were used, for all these purposes, in the state of Louisiana. In some countries of Europe, where the civil forms of practice obtained, and in Louisiana, they had the trial by jury, in as full vigor as under the common law forms. That mode of trial was just as applicable, in civil controversies, in one form as in the other. The inconvenience of having these two forms of practice, had long been felt here. In every state in the union, except New-York, New-Jersey, Maryland and South Carolina, law and equity were now administered in the same courts; although under different forms of proceeding. And even in the four states mentioned, and also in England, law and equity in the last resort, was administered in the same court. In Great Britain, the court of exchequer long had a law side; the same judges administering both kinds of practice. Still, generally, they had been kept apart in that country, as to the modes of practice.

"Efforts had been made, in several states, to bring these two forms together. An effort had been made in Pennsylvania; but there, they took a course, precisely opposite to that which

good sense would have recommended. They attempted to make the fictions of the common law subserve all the ends of civil justice; and as those are utterly incompetent for this purpose, that state presented a very unfavorable specimen of the effects of endeavoring to administer civil justice in one form. His view was, that the forms of pleading used in chancery, reduced and cut down to the extent they might be, were the true forms by which civil justice might be administered, in all cases, in one court, and by an uniform mode of practice.

"It was so administered, not only in all the countries of Europe, in Scotland, and in Louisiana, but in all cases of admiralty jurisdiction throughout the United States. Directly under our eyes, in the United States district court, sitting here at Albany, this mode of pleading and practice-simple, uniform, free from technicalities, which was adequate to the administration of justice in all civil cases,-was in full operation. And he invited the convention to approach the framing of these provisions, with the view of carefully avoiding the perpetuation of these distinctions, and enabling the legislature to simplify and bring the two forms into one, if practicable."— (Conv. Debates Argus ed., 441, 442.)

The history of jurisprudence, both in this state and in England, is full of illustrations of the justice of these remarks, and affords a most convincing proof of the wisdom of the measure adopted by the people of this state, in abolishing the distinction between law and equity tribunals. Notwithstanding their separate existence, they had, under the institutions of this state, but one common object, the administration of justice-depending not upon the mere discretion of the court, but ascertained by fixed and certain rules of law. And yet, while they were kept distinct, though their jurisdictions continually encroached upon each other, there were certain rules, not well defined, but yet existing, by which their powers were distinguished. It is, therefore, no matter of surprise, that the books are filled with cases, in which the injustice has been imposed upon parties, of suffering the loss of a substantial right, because of a mistake in the choice of a forum, before which its enforcement was

sought. If it were necessary, scores of cases might be cited, in which, after a long and protracted controversy upon the merits, the cause ultimately turned upon the question of mistaken jurisdiction.

Nor is the view of the subject, which has here been presented, peculiar to the discussion which it has undergone in this state. The attention of jurists in England, the only country in Europe in which this distinction of jurisdictions exists,— has been directed to its consideration. In his great speech upon law reform, Lord Brougham, in discussing the subject of proceedings in the courts of justice, presented, as one of the prominent points for the consideration of parliament, the abolition of the distinction to which we have referred; and urged the adoption of the principle, that "no party should be sent to two courts, where one is able to afford him his whole remedy; nor to a dearer and bad court, when he can elsewhere have a cheaper and better remedy; nor should any one be obliged to come twice over to the same court, for different portions of his remedy, which he might have all in one proceeding."

It is, however, no part of our purpose to present the principle of an union of law and equity jurisdiction, upon a broader basis than that which has reference to their forms of proceeding. It is enough for us to know, that the fundamental law has united these functions in one tribunal; and in recommending to the legislature a system of practice, by which those functions may be conveniently exercised, it is only necessary that we should take care not to encroach upon substantial rights. Keeping in view the distinction between rights, on the one hand, and the means of their ascertainment and enforcement, on the other, the only question is, whether a mode of proceeding, common to all civil controversies, whether known as legal or equitable, can be safely and conveniently prescribed.

The object of every suit, so far as modes of proceeding are concerned, is to place the parties whose rights are involved in it, in a proper and convenient form, before the tribunal by which they are to be adjudicated; to present their conflicting allegations, plainly and intelligibly to each other and to the