the judgment especially in its relations with the parties. By pursuing the order here indicated the theory of the civil action, so far as it involves doctrines and principles peculiar to the reformed procedure, is presented in an exhaustive manner.

§ 43. In carrying out the plan which has been explained in this introductory chapter, my object has been to furnish for the bar and the bench a treatise which may be useful to them in their professional labors, and for the students of law a text-book which may aid them in acquiring a knowledge of the reformed procedure in all of its essential and fundamental principles. To this end the work is entirely based upon the text of the codes and upon the decisions of courts which have interpreted that text. In no instance have my own opinions or speculations, unsupported by authority, been stated as established rules; whenever such opinions are given, their proper character is plainly indicated. Among the vast number of decisions, many of them conflicting, I have endeavored to distinguish between those which repudiate or neglect the legislative intent and those which follow and give it effect; and upon the basis of the latter class I have attempted to construct a symmetrical and harmonious. system which embodies the true principles of the reformed procedure.

PART FIRST.

THE CIVIL ACTION ACCORDING TO THE AMERICAN SYSTEM OF PROCEDURE; ITS ESSENTIAL PRINCIPLES AND FEATURES.

CHAPTER FIRST.

The Principle of Unity in all Judicial Proceedings; Abolition of the Distinctions between Actions at Law and Suits in Equity, and of all the Common-law Forms of Action; Adoption of a Single and Uniform Judicial Instrument called the Civil Action, by which the Remedies known to the Law are to be obtained, and the Remedial Rights are to be enforced.

§ 44. THE following is the form of the simple but most comprehensive provision found in the codes of procedure and practice acts, embodying the fundamental principle which is the subject-matter of the present chapter, and which is the single source from which all the other portions of the system flow as necessary consequences : "The distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished; and there shall be in this State hereafter but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action." 1 In a very few of the States the change from the former modes is not so complete, and a slight distinction is preserved between

1 N. Y. § 69; Cal. § 307; S. C. § 92; Nev. §1; Neb. § 2; Kans. § 10; Ohio, § 3; Ind. § 1; Minn. Stat. at Large, ch. 41, § 1; Mo. Wagner's Stat. ch. 110, art. 1, § 1; Wisc. R. S. ch. 122, § 8; Flor. § 49; N. C. §12; Dacota, § 22; Idaho, § 1; Wash. § 2; Wyoming, § 3; Montana, § 1; Arizona, § 1. The provision in the latest Revision of the California Code (1872) is as follows: "§ 307 (§ 1). There is in this State but one form of civil actions for the enforcement or protection of private rights, and the redress or prevention of private wrongs."

In several of the States the language of the section differs slightly from the form given in the text, the last clause, after the word "abolished," reading as follows: "And in their place there shall be hereafter but one form of action, which shall be called a civil action."

The provision of the Missouri, Nevada, Idaho, Montana, and Washington codes is the same in substance and almost identical in language with that quoted above from the California statute.

suits brought to obtain legal and those brought to obtain equitable relief. All the common-law forms of action are abolished, and one civil action is established for all remedial purposes the proceedings in this civil action, however, may be either (1) ordinary or (2) equitable. The plaintiff may prosecute his action by equitable proceedings in all cases where courts of chancery, before the adoption of the code, had jurisdiction, and must so proceed in all cases where such jurisdiction was exclusive. In all other cases the plaintiff must prosecute his action by ordinary proceedings. The plaintiff indicates by the formula, "In ordinary proceedings," or "In equitable proceedings," at the commencement of his petition or complaint, to which class the action belongs. The provisions of the code regulating the prosecution of actions apply to both kinds of proceedings unless the contrary expressly appears. In fact, the only real distinction between them is that they are to be placed upon different dockets of the court, so that the suits of the one class will be tried by a jury, while those of the other class will be tried by the judge without a jury, and the evidence in equitable proceedings may be taken by deposition instead of by oral examination in open court. It is evident that in these States the difference kept up between legal and equitable actions. is more nominal than real, and that the principle of absolute unity prevails as truly in their codes as in those of the other commonwealths. As this principle of unity in all civil judicial procedure, of a single instrument by which remedies may be obtained, rights asserted, and duties enforced, lies at the bottom of the entire system; as this particular doctrine has given rise to a great conflict of opinion and of decision; and as a failure to apprehend its exact import, extent, and limits must inevitably defeat the beneficial results which the reform was intended to produce, I shall at the outset examine it with care, and shall endeavor to ascertain the true intent of the lawmakers, and how far that intent has been followed and carried out by the courts. That the discussion may be exhaustive, and may present the subject in all its phases, the present chapter will be separated into the following sections: Section I. A theoretical unity, or the theory of an absolute union of legal and

1 Ky. §§ 1-13; Iowa, §§ 2507, 2508, 2513, 2514, 2520; Oregon, §§ 1, 376.

equitable actions. I shall, in the subsequent sections, inquire how far this theory has been adopted by the legislatures, and to what extent the courts have gone in combining the legal and equitable methods of administering remedial rights, viz.: Section II. The general principles as to the union of legal and equitable methods which have been announced by the courts. Section III. The union of legal and equitable causes of action and remedies in one suit. Section IV. The setting up of equitable defences in legal actions. Section V. The bringing a legal action based upon an equitable primary right. Section VI. The nature of actions, and the essential distinctions among them.

SECTION FIRST.

A Theoretical Unity in Procedure; or the Theory of an Absolute Union of Legal and Equitable Actions into a Single Judicial Instrument for the Enforcement of L all Remedial Rights and the Obtaining of all Remedies.

§ 45. To aid us in determining just what the statutes, and the courts in construing them, have done in the way of reducing all forms of judicial action to one, we may properly inquire what is the pure ideal or theory of such a unity. We may assume that the legislature had before them in contemplation such an ideal or theoretic scheme; and if we can by any a priori reasoning, by any inferences drawn from the very nature of the subjectmatter, arrive at this theoretic conception, we shall certainly have done much towards ascertaining the ultimate legislative intent. Whether the legislature has by apt language and by sufficient provisions worked out and expressed this intent in a complete. manner, is another and very different question. It is very possible, and in fact probable, that the law-makers had before them an ultimate object conceived of with some clearness and distinctness, but that they have fallen far short of reaching that object. In seeking to discover this supposed ideal or theory, the following questions must be considered and answered: What is an absolute and complete union of legal and equitable methods and actions, so that one judicial instrument should be sufficient for the enforcement of all remedial rights and the obtaining of all remedies? How far is such a complete and absolute unity possible? What features and elements in the nature of primary