CHAPTER III. UNION OF LEGAL AND OF EQUITABLE REMEDIES. ARTICLE I. GENERAL PRINCIPLES. Section 1. Mode of uniting the two systems. Under the English system, courts of law and courts of equity are separate and distinct organizations, each of which administers the rules of law, or the principles of equity, according to a long-established practice. The general adoption of this system in many of the States of the Union is familiar to every student. In this State there were formerly courts of law, and also a court of chancery, both of which had existed from an early period, and they continued to exist down to the year 1846. By the constitution of 1846, it was provided by article 6, section 3: "There shall be a supreme court having general jurisdiction in law and equity." In accordance with this provision, the legislature enacted a law, declaring that the supreme court, organized under this constitution, should have the same powers and exercise the same jurisdiction as that possessed and exercised by the supreme court or the court of chancery of this State. Laws 1847, ch. 280, § 16. By section 69 (62) of the Code, the distinction between actions at law, and suits in equity, and all the forms of such actions or suits were abolished; and but one form of civil action, for the enforcement or protection of private rights, or the redress of private wrongs, was recognized. The object of these changes was, to obviate many of the inconveniences arising from a double system of practice, and also to simplify the proceedings in all the courts. The principles of the common law were generally plain, simple, few in number, and unbending in many instances to suit the exigencies of the particular case to be decided. The result was sometimes inconvenient, if not unjust, and for this reason the court of chancery was established for the purpose of softening Principles of law and equity unchanged. the rigor of the common law, and for doing complete justice by means of forms of proceeding peculiar to itself. But even this system of a double court, with separate forms of proceeding, did not prevent the existence of some inconveniences; and, for the purpose of securing all the advantages, and avoiding all the inconveniences of the former systems, the present system of blending law and equity practice was adopted in this State. In another part of this work an outline of the former systems will be given, before proceeding to explain the details of the present system of practice. Section 2. Principles of law and equity unchanged. It will be remembered that the matters under consideration relate to the practice of the courts, and not to the general rules of law, nor to the principles of equity, by which rights are to be decided, or wrongs redressed. The rules of law will remain unchanged, whether they are enforced by a court having nothing but a common-law jurisdiction, or by a court of equity, or by a court exercising both a legal and an equitable jurisdiction. "Although the Code has abolished all distinctions between the mere forms of action, and every action is now in form a special action on the case, yet actions vary in their nature, and there are intrinsic differences between them which no law can abolish. It is impossible to make an action for a direct aggression upon the plaintiff's rights by taking and disposing of his property, the same thing, in substance or in principle, as an action to recover for the consequential injury resulting from an improper interference with the property of another, in which he has a contingent or prospective interest. The mere formal differences between such actions are abolished. The substantial differences remain as before. The same proof, therefore, is required in each of these same kind of actions as before the Code, and the same rule of damages applies. Hence, in an action in which the plaintiff establishes a right to recover, upon the ground that the defendant has wrongfully converted property, to the possession of which the plaintiff was entitled at the time of the conversion, the proper measure of damages still is the value of the property; while in an action in which the plaintiff recovers, if at all, upon the ground that the defendant has so conducted himself in the exercise of a legal right in respect to another's property, as unnecessarily and improperly to reduce the value of a lien, which the plaintiff could only enforce at Principles of law and equity unchanged. some subsequent day, the damages must, of course, depend upon the extent to which that lien has been impaired." Goulet v. Asseler, 22 N. Y. (8 Smith) 228, 229, SELDEN, J. The union of the two systems of law and equity practice has not enlarged the powers of the new court, either as to legal or equitable jurisdiction; in relation to the rights which they may declare; or the remedies which they may enforce. And where an injunction could not have been granted under the former practice by the old court of chancery, it cannot now be granted by the new court, because the equitable jurisdiction of the courts is not enlarged by the union of legal and equitable powers in one court, nor by the provisions of the Code. New York Life Ins. Co. v. Supervisors of New York, 4 Duer, 192, 1 Abb. 250. An action of trover could not have been maintained under the former practice without proof of an unlawful detention or a conversion of the property; and under the Code this proof is qually essential. Eldridge v. Adams, 54 Barb. 417. See Goulet. Asseler, 22 N. Y. (8 Smith) 225. Although the Code abolished the forms of actions, yet the principles by which the former actions were governed still remain, and control as much now as formerly in determining the rights of parties. Ib. The abrogation of the distinction between actions at law and suits in equity, by enacting that there should be but one form of action, which should be called "a civil action," did not obliterate the distinction between the two sorts of proceedings, so far as the federal courts are concerned. Thompson v. Railroad Companies, 6 Wall. 134. And, if a civil action is brought in a State court, and it is essentially a common-law action, then the common-law form, and not an equitable one, must be pursued if the case is removed into a federal court. Ib. An action in a common-law form cannot be prosecuted in a State court up to the removal of the cause to a federal court, and then have the form of the action changed into that of a suit in equity. Ib. If the original form of the action was in accordance with the practice of the State courts, no change will be necessary on the removal of the cause, as the federal courts will, in such cases, adopt and apply the practice of the State courts. Ib. But this adoption of the State practice is not to be understood as confounding the principles of law and equity, nor as authorizing legal and equitable claims to be blended together in one suit. Ib. Joinder of actions, whether legal or equitable. Section 3. Joinder of actions, whether legal or equitable. Under the former system, a party sometimes erred in the choice of a court in which to obtain a remedy; and the result was delay and expense, if no other loss ensued. A party who instituted a suit in equity, when his remedy was at law, was turned out of that court to begin again; and the same was true, when an action was brought at law in a case where equity afforded the only relief. As the courts are now organized, where the same judge presides in all cases presented for adjudication, no one can be turned out of the supreme court upon the ground that his action was commenced in the wrong court. But, before noticing what causes of action may be joined, it ought to be mentioned that the rules of law and the principles of equity have not been changed or blended, even when legal and equitable remedies are both sought in a single action. Formerly, an action at law and a suit in equity were both essential, in some cases, if full justice was done to both parties. By the present system, it is intended that one action shall attain the same result, with less delay, expense or difficulty than under the old practice. The former courts of law and the old court of chancery each had a separate jurisdiction, and each had a system of practice which differed materially from that of the other. The present system adopts the same practice for all classes of actions, or of remedies, so far as that result is practicable. And, in reference to the mode of commencing actions; the general mode of pleading; the practice on the trial; the mode of entering judgments and of enforcing them; and even the remedy by appeal; there is much that is alike, and where there is a difference, it is in those matters which are required by the nature of the action. But, while many of the proceedings and forms will be the same, whether the remedy sought be legal or equitable, there will be some proceedings and forms required in some classes of actions, which would not be appropriate in, nor would they be adapted to, the other. The same judge may hear an action at law or a suit in equity, and either action may be commenced by a summons; but, even in such a case, there will be some difference in the form of the summons. Again, an action upon a promissory note may require many proceedings, which are essentially like those in a suit in equity, for the adjustment of complicated equities; but yet there are, and there always must be, differences in the mode of conducting these actions. And it will be Joinder of actions, whether legal or equitable. found, on a careful examination, that, except in the uniformity of general proceedings already mentioned, the courts adopt the equity practice in equitable suits and proceedings, and those of the common-law practice in actions at law. In most actions of a legal nature the issues are few and simple, and readily disposed of by a jury; but, in an intricate equity suit, there are many matters which no jury could possibly dispose of in a proper manner. In such cases, the practice in each action must be such as is appropriate under the circumstances; and, while pursuing such a mode, it does not interfere with the aforesaid principle, that the practice in actions at law and in suits in equity have, so far as practicable, been united. The object in blending them was to secure as great uniformity as was attainable, but it was not considered any less important to retain all the advantages of both systems, and to use them whenever the ends of justice and the objects of the law would be best subserved. Uniformity in the practice is not to be limited to an attempt to reduce every kind of action to one form of proceeding, nor will it be secured by applying the same rules of proceeding in every case. In equitable actions there are, in nearly all cases, many steps to be taken which would not be proper in an action at law, and yet they are indispensable in equity proceedings. This dif ference does not in any manner interfere with the general rules of practice, which are equally applicable to either class of actions. Consistency in relation to joining actions at law and suits in equity does not require that the practice should be uniform in all particulars, for that is plainly impracticable. When as great uniformity as is practicable is attained, all the advantages of blending the two systems will have been secured. And the next important step will be to adopt a uniform and harmonious practice in relation to each class of actions, whether legal or equiable. And it is just here that some of the most perplexing questions have arisen. The present practice is much of it founded upon statutes, and the difference of opinion among judges in construing them has been greatly increased by the large number of judges who have decided the various questions as they arose in the course of actions. Material differences in the minds of the judges, and of their various modes of study and practice, in addition to the fact that many cases were decided without the aid of previous decisions, which were not then reported, have all tended to increase the number of contradictory |