tween law and equity inhere in the very nature of the subject, and cannot be abolished. The legislature may, unless restrained by the constitution, abrogate the law or equity, but cannot destroy the distinctions between them. The language of the statute, however, is not broad enough to effect such a change; it is confined to external acts and forms, to the methods of obtaining remedies, to the incidents of actions, and not to their substance. Even when thus restrained, there are necessary elements in the subject-matter which cannot be affected by legislation, and which limit therefore the general phrases of the code. Assuming that primary legal and equitable rights and duties remain unaltered, essential differences must exist in the actions brought to enforce the legal and the equitable classes of rights, and also the various species of legal rights. For this reason the substantial features and characteristics of the various actions at law must and do subsist, and the rules which are based upon these facts must and do continue in operation. The names "covenant," "debt," "trespass," ," "assumpsit," "bill in equity," and the like, have been abandoned; but all the things which these names represented are left in their essentials exactly as before the attempted reforms. This theory of interpretation reduces the Code of Procedure from its position as the embodiment of a new system for the administration of justice to the level of a mere amendatory act regulating the minor details of practice. The explanation here made of it is now useful only as a matter of history; it never became controlling; the opinions which it represents were those of individual judges rather than of courts, and they have been repeatedly and completely overruled by tribunals of the highest. authority.1 to arrange themselves according to the classification which existed prior to the code that the distinction between legal and equitable actions is nearly as marked upon all the papers presented to the court as formerly. The same names are not used, but the nature of the cases has not changed, nor have the distinctions been abrogated. Very few attempts have been made to carry into practical effect the idea of blending legal and equitable causes of action in one common proceeding. Were it necessary to the decision of this case, I should be prepared to hold that that clause of the constitution which provides that there shall be a Supreme Court having general jurisdiction in law and equity' presents an insuperable barrier to any legislative merger of the jurisdictions." In accordance with this theory, the same learned judge in various other cases held that the legal and equitable actions are still to be distinguished in their modes of pleading, in the rules as to parties, and in those respecting the rendition of judgment. In short, he would preserve all the substance of the two classes, and only give up the names. 1 See the comments upon Mr. Justice Selden's opinion in Reubens v. Joel, made by Comstock J., in N. Y. Ice Co. v. Northwest. Ins. Co., 23 N. Y. 359, 360. § 67. This protest against the changes in the time-honored modes of judicial procedure, this antagonism to the principle of the new system, which was at the outset confined to a small though very able portion of the bench, was long since abandoned; and the courts have in most of the States not only conformed to the letter of the reformatory legislation, but have to a considerable extent, but not, as I think, to the full extent, accepted and carried out its evident spirit and meaning. I speak advisedly in this statement. While the courts on the whole, and in all the States, do not show a disposition to defeat the reform by a hostile construction, but rather seem desirous of promoting it, and establishing it upon a secure basis, there are yet marked differences in this respect among the States, and also strange inconsistencies in the application of general principles to particular instances. The acceptance of the reformed procedure is much more constrained and reluctant in certain of the States than in the remaining and by far the larger portion of them. Again, a lack of uniformity will be discovered in applying the most general and comprehensive principles of interpretation to the various elements and features of judicial procedure. All these inconsistencies, when they exist, have arisen from the incapacity of the judicial mind to apprehend the fact that legal actions and equitable actions have been abolished, and a "civil action" has been substituted in their place. Conceding this truth in general, courts have sometimes failed to act upon it in reference to some subordinate particulars; the result has been, not a perfect harmonious structure built up by judicial labor, but a structure, although following on the whole a comprehensive and symmetrical plan, yet marred by many breaks and unfinished parts, and misshapen additions. In short, the true fundamental principles of construction have been generally adopted as guides, the true spirit and design of the reformed system have been generally apprehended; but in descending to the details, and in prescribing the practical rules of procedure, this principle and this spirit have been sometimes forgotten or intentionally disregarded. § 68. It has been abundantly settled, in perfect accordance with the theory developed in the preceding section, and in strict conformity with the language and design of all the State codes and practice acts, that the new system has not produced, and was not intended to produce, any alteration of nor direct effect upon the primary rights, duties, and liabilities of persons created by either department of the municipal law.1 Whatever may have been the nature or extent of these primary rights and duties, possession in this action depend upon the "forms of procedure " rather than upon "the principles by which the rights of the parties are to be determined"? This particular question will be examined at large in section five of the present chapter. In Cole v. Reynolds, 18 N. Y. 74, Mr. Justice Harris thus states the doctrine (p. 76): "The principles by which the rights of the parties are to be determined remain unchanged. The code has given no new causes of action. In some cases parties are allowed to maintain an action who could not have maintained it before; but in no case can such an action be maintained when no action at all could have been maintained before upon the same state of facts. If, under the former system, a given state of facts would have entitled a party to a decree in equity in his favor, the same state of facts in an action prosecuted in the manner prescribed by the code will now entitle him to a judgment to the same effect. If the facts are such that, at the common law, the party would have been entitled to judgment, he will, by proceeding as the code requires, obtain the same judgment. The question, therefore, is, whether, in the case now under consideration, the facts, as they are assumed to be, would, before the adoption of the code, have sustained an action at law or a suit in equity." The leading case of Lattin v. McCarty, 41 N. Y. 107 (1869), is very decisive, both from the manner in which the questions arose, from the allegations of the pleadings, and from the language of the opinion delivered by Hunt C. J., and concurred in by the entire court. It, of course, overrules all prior decisions in that State which were opposed to it in their letter or in their spirit, destroys the effect of numerous judicial dicta scattered through the reports, and settles the law for New York. The complaint sets out facts showing an equitable ownership of land in the plaintiff, and a legal title in the defendant by means of a deed from the admitted source of title, regular in form, but alleged to have been fraudulent in fact; and it prayed possession of the 1 Peck v. Newton, 46 Barb. 173, 174, per Parker J.; Cole v. Reynolds, 18 N. Y. 74, 76, per Harris J.; Lattin v. McCarty, 41 N. Y. 107, 110, per Hunt C. J.; Meyers v. Field, 37 Mo. 434, 441, per Holmes J.; Richardson v. Means, 22 Mo. 495, 498, per Leonard J.; Maguire v. Vice, 20 Mo. 429; Matlock v. Todd, 25 Ind. 128, 130, per Elliott J.; Woodford v. Leavenworth, 14 Ind. 311, 314, per Worden J.; Emmons v. Kiger, 23 Ind. 483, 487; De Witt v. Hayes, 2 Cal. 463,468, per Murray C. J.; Grain . Aldrich, 38 Cal. 514; Cropsey v. Sweeney, 27 Barb. 310; Klonne v. Bradstreet, 7 Ohio St. 322, 325, per Bowen J.; Garrett v. Gault, 13 B. Mon. 378, 380, per Hise J.; Bonesteel v. Bonesteel, 28 Wisc. 245, 250, per Lyon J.; Dickson v. Cole, 34 Wisc. 621, 625; Martin v. Mobile & O. R. R., 7 Bush, 116, 124; Richmond, &c. T. Co. v. Rogers, 7 Bush, 532, 535; Lawson v. Plaff, 1 Handy, 449, 452; Claussen e. La Franz, 4 Greene (Ia.), 224; Smith v. Rowe, 4 Cal. 6. As the very language used by the judges in certain of these cases will illustrate better than any description the exact views of the judiciary in regard to this fundamental principle, and especially the extent to which it has been applied in the controversies before them, I shall quote from it at some length. Peck v. Newton, 46 Barb. 173, was an action to recover possession of land, the plaintiff's title being equitable, substantially that of a vendee, and the defendant being an intruder without title so far as the case discloses ; the complaint simply demanded possession. The court held that the plaintiff could not recover; that he should have obtained a specific performance from his vendor, and then brought an action for the possession. Parker J. said (p. 174): "Although the code has abolished the distinctions between actions at law and suits in equity, 80 far as it regards the forms of procedure, still the principles by which the rights of the parties are to be determined remain unchanged." Whether the court properly applied the principle which they invoke may well, as I think, be questioned. Does not the plaintiff's ability to recover the from whatever causes, facts, acts, or omissions they took their rise, whether they were denominated legal or equitable, they land, cancellation of said deed, and a conveyance from the defendant to the plaintiff. A demurrer to the complaint, on the ground that two causes of action had been improperly united, having been sustained, the plaintiff appealed. Mr. Justice Hunt delivered the opinion of the court, reversing the judgment below, from which I take the following extract (p. 109): "Assuming that the complaint does contain two causes of action as is insisted, the judgment was still erroneous. The argument principally relied upon to sustain the demurrer is this, that the two causes of action are of different characters, -one an action of ejectment, being an action at law, the other an action to set aside a deed as fraudulent, and of an equitable nature; that the latter may be tried by the court, while, in the former, the party is entitled to have his case passed upon by a jury. The codifiers labored assiduously to anticipate and to overrule this objection." He cites the preface of the code, and §§ 69, 167, and proceeds: "In these provisions, and in others, the distinction between legal and equitable causes of action is recognized. There is no attempt to abolish this distinction, which would be quite unavailing. The attempt is to abolish the distinction between the forms of action and the modes of proceeding in the several cases. The difficulty under consideration has also been expressly overruled by this court in the cases that I shall presently cite." And he cites several decisions which I shall refer to hereafter. In Meyers v. Field, 37 Mo. 434, 441, Mr. Justice Holmes said: "The distinction between law and equity has not been abolished by the new code of practice. Equitable rights are still to be determined according to the doctrines of equity jurisprudence, and in the peculiar modes of proceeding which are sometimes required in such cases; and legal rights are to be ascertained and adjudged upon the principles of law; and the rules of proceeding at law are in many respects very different from those which are applicable to equity cases." It should be remarked that much which Mr. Justice Holmes says must be taken with great caution. His position in regard to the reformed procedure was quite similar to that occupied by Mr. Justice S. L. Selden. He refused to see in the new system any substantial change; and, although he seems to have led the court of Missouri to approve and adopt his peculiar views, that tribunal has since, as will be seen in subsequent sections, utterly repudiated them. In Richardson v. Means, 22 Mo. 498, the rule was thus stated by Leonard J.: "The code has not changed the rights of parties, but only provided new remedies for their enforcement. It has not abolished the distinction between legal and equitable rights, but the distinction between legal and equitable remedies, so far at least as to provide that one form of suit shall be used for the enforcement of both classes of rights." It is plain that the judge uses the word "remedies "here as synonymous with the instruments, the actions themselves, and not the reliefs procured thereby. In Matlock v. Todd, 25 Ind. 128, the defendant had invoked the statute of six years' limitation, which would bar an action at law; but the court held that the equitable rule applied, saying, “Though the code has abolished the distinction between actions at law and suits in equity and the forms of pleading, it has not changed the rules of law as to the rights of parties." In Woodford v. Leavenworth, 14 Ind. 311, 314, Worden J., said: "It is undoubtedly true that if, by the rules either of law or of equity, the plaintiff is entitled to recover on the facts stated, he may do so in this case. But the abolition of the distinction between actions at law and suits in equity does not entitle a party to recover in a case where before such abolition he could not have recovered either in law or in equity." The courts of California have, from the very adoption of the new system by the legislature of that State, accepted and administered its provisions and principles according to their spirit and true intent; and I know of no decided cases from which the profession can obtain more aid in construing the reformatory legislation remain exactly the same as before. The codes do not assume to abolish the distinctions between "law" and "equity,” regarded as two complementary departments of the municipal law; not a clause is to be found which suggests such a revolution in the essential nature of the jurisprudence which we have inherited from England. The principles by which the courts determine the primary rights and duties of litigant parties remain unaltered; upon the acts or omissions which were the occasion of a right called equitable the same right is still based, and is still properly termed equitable; from the acts or omissions which were the occasions of a right called legal the same right still arises, and is still with propriety termed legal. I remark, in passing, that much of the confusion and uncertainty which now exist would at once disappear, if the bar and the bench should adopt a nomenclature in conformity with the settled principle of interpretation, and should speak of legal and equitable rights, legal and equitable remedies, but not of legal and equitable actions. To term an action "legal" or "equitable" is a misnomer, and one which involves a wrong conception and a false doctrine, since the statute has removed all distinction between legal and equitable actions, and has substituted in place of both a single "civil action;" and the courts have decided that the legislature intended exactly what it has said. But as the legisla as a whole, than many which are to be found in the series of California Reports. In one of the earliest of these, De Witt v. Hayes, 2 Cal. 463, which was an action to restrain the collection of a local tax or assessment, Murray C. J. stated the doctrine in so clear and correct a manner that I shall quote from his judgment at some length (p. 468): “The legislature, in providing that there shall be but one form of civil action, cannot be supposed to have intended at one stroke to abolish all distinction between law and equity as to actions. Such a construction would lead to infinite perplexities and endless difficulties. . . . So cases legal and equitable have not been consolidated; and though there is no difference in the form of a bill in equity and a common-law declaration under our system, where all relief is sought in the same way from the same tribunal, the distinction between law and equity is as naked and broad as ever. To entitle the plaintiff to the equitable interposition of the court, he must show a proper case for the interference of a court of chancery, and one in which he has no adequate or complete relief at law." In Bonesteel v. Bonesteel, 28 Wisc. 245, 250, Lyon J. said: "There are certain essential and inherent distinctions between actions at law and in equity, to abolish which is beyond the power of legislative enactment. The legislature may abolish the old forms of action, and has done so; but the essential principles of equitable actions and equitable relief, as distinguished from legal actions and remedies, are as vital now, and as clearly marked and defined, as before the enactment of the code. They are indestructible elements in our system of jurisprudence, and the courts are constantly required to recognize and apply them." See Mowry v. Hill, 11 Wisc. 146, 149. |