not so complete, and a slight distinction is preserved between 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.2 1 Ky. §§ 1-13; Iowa, §§ 2507, 2508, 2513, 2514, 2520; Oregon, §§ 1, 376; [Arkansas, Sand. & Hill's Dig., §§ 56075610, 5616-5622.] 2 [The question cannot be raised by demurrer, but by motion to transfer from one docket to the other. McClure. Dee (1902), 115 Ia. 546, 88 N. W. 1093; McCormick, etc. Co. v. Markert (1899), 107 Ia. 340, 78 N. W. 33. See also the following cases in which this distinction is discussed: Hodowal v. Yearous (1897), 103 Ia. 32, 72 N. W. 294; Kassing v. Ordway (1897), 100 Ia. 611, 69 N. W. 1013; Gatch v. Garretson (1896), 100 Ia. 252, 69 N. W. 550; Evans v. McConnell (1896), 99 Ia. 326, 68 N. W. 790; Leach v. Kundson (1896), 97 Ia. 643, 66 N. W. 913; Hawley v. Exchange Bank (1896), 97 Ia. 187, 66 N. W. 152; Reed v. Lane (1895), 96 Ia. 454, 65 N. W. 380; Wilkinson v. Pritchard (1895), 93 Ia. 308, 61 N. W. 965; Rabb v. Albright (1894), 93 Ia. 50, 61 N. W. 402; Meehan v. Watson (1898), 65 Ark. 216, 47 S. W. 109.] SECTION FIRST. THE GENERAL PRINCIPLES AS TO A UNION OF LEGAL AND EQUITABLE METHODS WHICH HAVE BEEN ADOPTED BY THE COURTS. § 5. *65. Purpose of Section One, Chapter One. General Principles of Construction. It is not my purpose in the present section to discuss in order the particular practical questions that have arisen in the construction of those provisions of the State codes of procedure and practice acts which abolish the distinction between legal and equitable actions; namely, the combining of legal and equitable causes of action and defence in the same suit, the interposing of equitable defences to legal causes of action, the granting of legal remedies where the pleadings had contemplated equitable ones, or of equitable remedies where the pleadings had contemplated legal ones, and the like. I intend rather to ascertain, if possible, and state the general principles of construction which the courts have finally adopted and applied in the settlement of these and all other similar questions which have arisen from this most distinctive and important feature of the reformed procedure. These principles are fundamental; they underlie the whole process of judicial interpretation; they shape the entire action of the courts in building up a system of practical rules out of the broad and somewhat vague enactments of the statute. A knowledge of these controlling motives and opinions which have guided the judges in their work of construction is of the highest importance; with it we may attain a systematic and harmonious result; without it we shall certainly be left in a chaos of conflicting decisions. § 6. *66. Narrow Interpretation by Some Judges. This Interpretation Overruled. The adoption of the Code of Procedure by the Legislature of New York in 1848 was undoubtedly a shock to the opinions and prejudices of lawyers who had been accustomed to regard the former system as perfect in principle, and while it met with a strenuous opposition from many members of the bar, it is not surprising that some of the judges also for a time found it difficult, if not impossible, to yield obedience to the letter even of the statutory requirement, much less to accept its spirit with zealous approval. Opinions are to be found, deliv ered at an early day by very eminent and able judges, sometimes sitting in the court of last resort, which, if taken as correct expositions of the statute, would have reduced the great reform to the empty change in a few words; the ancient names would have been abolished, but all the substance, all that was represented by those names, would have remained in full force and effect. According to this view there had been no union of methods into one common mode of proceeding, no abolition of any real distinctions between legal and equitable actions, because such a result is simply impossible of attainment.1 Since the New York Constitution provides that the Supreme Court of that State shall have general jurisdiction in law and equity, and speaks in one or two other places of "equity," it has been said from the bench that a statute abolishing the distinctive features of equity would be unconstitutional, and that the New York code, so far as it purports to produce that effect, is void.2 The system which this school of judges has constructed out of the reformatory legislation is the following.3 The distinctions be 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; 1 See Reubens v. Joel, 13 N. Y. 488, 493, and Voorhis . Child's Ex., 17 N. Y. 354, 357-362, per S. L. Selden J. 2 Selden J., in Reubens v. Joel, 13 N. Y. 494, 495. 8 Selden J., in Reubens v. Joel and Voorhis v. Child's Ex., ubi supra. [See Anderson v. Chilson (1895), 8 S. D. 64, where it is stated in the syllabus that 'Although the common law forms have been abolished, an equitable action under the code system is clearly distinguishable from one at law," quoting from Dalton v. Vanderveer (Sup.), 29 N. Y. Supp. 342, that a "distinction between equitable and legal actions still exists, though the forms have been abolished." In Casgrain v. Hamilton (1896), 92 Wis. 179, 66 N. W. 118, it is shown that whether the action is one in tort or in contract is still a practical question under the code. See also Rood v. Taft (1896), 94 Wis. 380, 69 N. W. 183, in which it is held error to permit the jury to find a cause of action ex contractu under pleadings showing that the cause of action was founded in tort. See also to the same effect State ex rel. v. Helms (1898), 101 Wis. 280, 77 N. W. 194. See further Joseph Dessert Lumber Co. v. Wadleigh (1899), 103 Wis. 318, 79 N. W. 237, affirming Kewaunee Cy. Sup. v. Decker, 30 Wis. 624, and in which it is said: "It is just as necessary to-day as it ever was that a suitor should so state his cause of action that the court may determine whether it be ex contractu or er delicto." In Francisco v. Hatch (1903), 117 Wis. 242, 93 N. W. 1118, the court said: "Having brought this action in tort, neither the plaintiff nor the court could change it into an action upon contract upon the trial against the defendants' objections. This principle is well settled in this State."] 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, "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 1 [See, however, the case of Draper v. Brown, decided in 1902 by the Supreme Court of Wisconsin, 115 Wis. 361, 91 N. W. 1001, from which we quote as follows: "It may seem somewhat anomalous that, under a Code, any distinction should exist between legal and equitable actions. That such distinction does exist is recognized in almost every Code State. It is a distinction inherent in the very nature of things, and must be recognized so long as both legal and equitable remedies are permitted. A man has both legal and equitable rights. In the vindication of his legal rights he can call upon the individual or individuals who have invaded such rights for reparation. In the enforcement of his equitable rights he has the power, and it is his duty, to call in every person necessary to a complete determination or settlement of the question involved. Such is the statute. Section 2603, Rev. St. 1898. In treating this question, Mr. Justice Lyon, in Bonesteel v. Bonesteel, 28 Wis. 245, wrote as follows: 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.' The courts of New York announced the same doctrine early in the history of the Code. Reubens v. Joel, 13 N. Y. 488; Goulet v. Asseler, 22 N. Y. 225; Gould v. Bank, 86 N. Y. 75-83. So pronounced and well preserved is this distinction that this court sustained a demurrer to a complaint in an equitable action, notwithstanding it contained allegations which, if standing by themselves, would constitute an action at law. Denner v. Railroad Co., 57 Wis. 218, 15 N. W. 158."] 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 § 7. *67. How Interpreted in Most of the States. Criticism of Interpretation in these States. 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; 2 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 reform system have been gener 1 See the comments upon Mr. Justice Selden's opinion in Reubens v. Joel, made by Comstock J., in N. Y. Ice Co. v. N. W. Ins. Co., 23 N. Y. 359, 360. 2 See, however, cases cited in note 1, p. 9. |