trial of the issues separately and at different times. The equitable issues may be tried first and the legal issues afterwards, or the order may be reversed as the nature of the case and the relations of the issues seem to require.1 SECTION FOURTH. EQUITABLE DEFENCES TO ACTIONS BROUGHT TO ENFORCE LEGAL RIGHTS AND TO OBTAIN LEGAL REMEDIES. § 87. Another practical effect of removing the distinction between actions at law and suits in equity is shown in the employment of equitable defences to actions brought to enforce legal rights and to obtain legal remedies. The ancient system knew of no such union, and a thorough-paced lawyer of the old school would have deemed it incestuous. Legal rights set up by the plaintiff must be met in the same action by legal rights set up by the defendant. If the defendant, when prosecuted in an action at law, had an equity which, if worked out, would defeat the recovery, his only mode of redress was to commence an independent suit in chancery by which he might enforce his equitable right, and in the mean time enjoin his adversary from the further prosecution of the action at law. A single familiar example will illustrate the situation. A. has entered into a contract with B. to convey to the latter a farm on payment of the price, and lets him into possession. The price is paid in full, so that the vendee is fully entitled to his deed. A., in this position of affairs, commences an action of ejectment to recover possession of the land. By the common-law system B. would have no defence whatever to that action; the legal title is in the plaintiff, and his own title and right to a deed, being equitable, were not recognized by courts of law as any defence. Of course a municipal law which did not furnish some means of enforcing B.'s right and defeating A.'s action would be incomplete, and unfitted for a civilized people. The Sale v. Crutchfield, 8 Bush. 636, 644. If an action is wrongly transferred to the equity docket when no valid equitable issues are presented by the pleadings, this is error which requires a new trial. Creager v. Walker, 7 Bush, 1, 3. 1 Massie v. Stradford, 17 Ohio St. 596; Petty v. Malier, 15 B. Mon. 591, 604; Smith v. Moberly, 15 B. Mon. 70, 73; Bennett v. Titherington, 6 Bush (Ky.), 192. See Guernsey v. Am. Ins. Co., 17 Minn. 104, 108; Harrison v. Juneau Bank, 17 Wisc. 340; Du Pont v. Davis, 35 Wisc. 631, 639; and see Richmond v. Dubuque, &c. R. R., 33 Iowa, 422, 489-491. common law provided a means, but it was cumbrous, dilatory, and expensive. B. commences a suit in the Court of Chancery, sets forth the agreement to convey and all the other facts from which his equitable title arises, alleges the pending ejectment brought by the vendor, and prays for the proper relief. It is important to notice the extent and nature of this relief, because it throws light upon questions which now arise concerning the doctrine of equitable defences. The vendee might content himself with asking and obtaining an injunction which would stay the pending ejectment, and leave him in possession undisturbed by that action, but would plainly not be a perfect and lasting protection in the future. To end the matter and to secure himself absolutely, he must ask and obtain the affirmative remedy of a specific performance and a conveyance from A. to himself. This being done, he is armed with the legal title, and can defend any legal action brought against him by the vendor or his heirs or grantees. Nothing could be devised more cumbrous than this double litigation to enforce one right and to end one controversy. Nothing could be more simple, natural, and necessary than the reform which permits the equitable right to be pleaded and proved in the action at law; and yet, when the change was made by the legislature, experienced and learned lawyers and judges denounced it, and strove to render it merely nominal. Even at the present day, and in States where the liberal doctrine has been accepted and has received the sanction of the highest tribunals, individual members of the bench will occasionally raise their voices in strenuous opposition; and in one or two of the States an interpretation has been placed upon the statute which confines its beneficial operation within the narrowest limits. The subjectmatter of the present section naturally separates itself into three divisions, and the discussion will follow that order: (1) What is an equitable defence? (2) When may an equitable defence be interposed in an action purely legal, which will include the joinder of equitable and legal defences in the same suit? and (3) When can affirmative relief against the plaintiff be granted to the defendant upon the equitable defence which he sets up? § 88. What is an equitable defence? It is to be observed that this term contains two distinct words, and that the separate meaning of each is essential to the complete and accurate conception of the whole," equitable" and "defence." Equitable is used in its technical sense as contrasted with legal; that is, the right which gives it its efficacy is an equitable right, a right formerly recognized and enforced only in courts of equity, and not in courts of law. The notion involved in the word "defence is, however, the most important to observe. In its juridical signification, a defence is something which simply prevents or defeats the recovery of a remedy in an action or suit, and not something. by means of which the party who interposes it can obtain relief for himself. If the codes had merely in express language authorized the defendant to set up equitable defences, but had not enacted any further provisions in reference to the subject-matter, the granting of affirmative equitable remedies to the defendant could not have been inferred from such permission. A "defence is essentially negative, and not affirmative. The facts from which the defensive right arises may perhaps, in a proper occasion and when employed for that purpose, be made the basis of affirmative relief; but, when so employed, they would not be a defence. In short, a defence is not to be conceived of as the means of acquiring positive relief or any remedy, legal or equitable. When, therefore, the statute permits an equitable defence to be interposed in a legal action, it merely contemplates the fact that the equitable right averred shall prevent the plaintiff from recovering the legal remedy he is pursuing by his action. If to this negative effect is added the privilege of obtaining an affirmative judgment against the plaintiff, based upon the same equitable right, the latter so far ceases to be "defence," and becomes in turn a cause of action. The action itself thus assumes a double aspect; each litigant party in this respect becomes an actor, and each a defendant. This analysis may appear to be, and certainly is, elementary and familiar; but it is needed to clear up some confusion and difficulties into which certain courts have fallen in reference to the subject under consideration. These courts, as will be seen in the sequel, would restrict the operation of the reform to those cases in which the defendant asks and obtains some specific affirmative equitable relief against the plaintiff; in other words, to those cases in which the equitable right relied upon by the defendant is not used as a defence at all, but is averred as a true cause of action. This construction is, as it seems to me, a palpable error, and it deprives the legislative provision of half . its efficacy. - $89. A few years ago the British Parliament, among its many legal reforms, enacted that in England an equitable defence might be pleaded in an action at law. In giving construction to this remedial statute, the English courts of law held that no such defence was admissible, in other words, they would recognize and enforce no such defence, unless it were of such a nature that courts of equity, in accordance with their well-settled doctrines, would, if the same facts were set out in a bill of complaint, grant an immediate injunction restraining the further prosecution of the action at law. This construction of course destroyed the practical utility of the statute. The American courts have not followed this extremely narrow interpretation. $ 90. A defence is a right possessed by the defendant arising from the facts alleged in his pleadings which defeats the plaintiff's claim for the remedy which he demands by his action. An equitable defence is such a right which was originally recognized by courts of equity alone. A concise and accurate definition was given by one of the members of the New York Court of Appeals in an early case. "Under the head of equitable defences are included all matters which would before have authorized an application to the Court of Chancery for relief against a legal liability, but which at law could not be pleaded at bar. The facts alleged by way of defence in this action would have been good cause for relief against the judgment in a court of chancery [the suit was brought on a judgment], and under our present system are, therefore, proper matters of defence."1 Another judge said in the same case: "An equitable defence to a civil action is now as available as a legal defence. The question now is, Ought the plaintiff to recover? and any thing which shows that he ought not is available to the defendant, whether it was formerly of equitable or of legal cognizance." 2 I need not pursue this analysis further; the instances in which equitable defences have been sustained, as given in the cases hereafter cited, will explain and illustrate their nature more clearly than any abstract definition or description. § 91. Express as is the language of the statutes, and well established as is the juridical nature of "defence" in general, the doctrine has been strenuously maintained, and is supported by 1 Dobson v. Pearce, 12 N. Y. 156, 166, per Allen J. 2 Dobson v. Pearce, 12 N. Y. 156, 168, per Johnson J. the decisions of respectable courts, that a defendant cannot avail himself, as a defence, of facts entitling him to equitable relief against the plaintiff's legal cause of action, unless he does it by demanding and obtaining that specific remedy which, when granted, destroys the cause of action; in other words, he cannot invoke the right as long as he treats it and relies upon it as a defence. If he does not institute a separate action based upon his equitable right, and recover the specific relief therein, and restrain the pending action at law, he must at least, in the answer pleaded to that action at law, affirmatively demand the equitable remedy, and this remedy must be conferred upon him. If he simply avers the facts as a negative defence, he will not be permitted to rely upon them, and to defeat the plaintiff's recovery by Certain of the cases which announce this doctrine, together with the reasoning by which it is sustained, will be found in the foot-note. The error of this doctrine has already that means. 1 Follett v. Heath, 15 Wisc. 601; Conger v. Parker, 29 Ind. 380; Hicks v. Sheppard, 4 Lans. 335, 337; Cramer v. Benton, 60 Barb. 216. See, also, Kenyon v. Quinn, 41 Cal. 325; Lombard v. Cowham, 34 Wisc. 486, 492; Dewey v. Hoag, 15 Barb. 365. As this doctrine is insisted upon in these cases with great emphasis, and as some of them are very recent, and are in direct opposition to other decisions in the same States, I shall give the views of the courts at length. Follett v. Heath was an action to recover possession of chattels. The defendant answered by way of equitable defence. He claimed the chattels under a chattel mortgage, given thereon by the plaintiff, which was intended to secure a certain note executed by the plaintiff, which had become due; but by mutual mistake it was made to secure another note of the plaintiff which was not yet due. The answer asked in the usual form for a return of the goods which had been taken by the plaintiff, but did not pray for a reformation of the mortgage. This answer, it was held, dis closed no defence to the action. In his judgment, Paine J. said (p. 602): "It is true that equitable defences may now be interposed. But the facts here sought to be interposed do not constitute any equitable defence, if they were established. The papers having been made wrong by mistake, the parties are bound by them unless they take some appropriate method to correct the mistake. That method is not to prove the mistake in an action at law, and have the same benefit as though the instruments were reformed; but it is to bring an equity action to reform the instrument, so that it can have its proper legal effect. . . . Equity aids in such cases by reforming the contract, not by giving effect to it without being reformed.” The learned judge here speaks as though the ancient system of separate equity and common-law jurisdictions still existed in full force and effect, and as though the legislature had not made its sweeping reform by combining the two into one mode of administering justice. In Conger v. Parker the complaint alleged a conveyance from defendant to plaintiff, by a deed containing the usual covenants, of a farm on which were several growing crops,-naming them, — among which was a crop of wheat; and that defendant took and converted these crops to his own use. The answer set up an agreement that the wheat crop was to be excepted from the conveyance, but that by mistake this exception was omitted from the deed. There was no prayer for a reformation. The court held this answer bad: (1) because it did not go to the whole cause of action, and (2) as stated by Frazer J., |