Value of the old practice.

by learned counsel before they were submitted for decision. The questions raised and decided were so numerous and so varied that they met nearly every exigency that could occur in practice.

It was while those systems were in force that nearly the entire body of English and American law was settled. There were no rights which could not be secured, and no wrongs which could not be redressed by a proper application of the old practice; and it is only by a careful study of the old principles that a full comprehension of the entire body of the present practice is to be attained. Practice is, to a certain extent, a system of arbitrary rules, for it is necessary that there should be some certain settled rule; but, in most cases, the rule adopted will be found to rest upon a satisfactory reason, which may not be found anywhere else so satisfactorily explained as in the old practice decisions. There is no branch of the law in which a complete knowledge of its history, and of its details, is of greater advantage than that of a knowledge of the practice. The questions arising daily in the courts are almost invariably a surprise to the party who has to meet them, and a want of proper information has frequently been a source of annoyance, if not of positive loss. The old practice has a still higher value than many may suppose, for, it is to be remembered, that much of it is unquestioned and settled law to this day.

While the new system is to be enforced in its true spirit, and while attempting to secure all its advantages, let the clearly settled old principles be retained unchanged, so far as this is consistent with the new plan, for it will be found that unnecessary changes are always accompanied by inconveniences that were not, and could not, be foreseen.

The Code has furnished an outline which may be filled up and rendered a harmonious system of practice at law and in equity. But, to do this successfully, there is no safe and reliable course but to adopt and use all the well settled old rules and principles which are consistent with the new plan. From such materials, joined with the later decisions, a complete system of practice may be constructed, which, in the main, will be harmonious, convenient, complete and reliable. To secure this result, let every student contribute his share, by carefully preparing himself for his duties as a practitioner, when he shall enter upon the duties of that profession which he has selected as worthy of his employment during life.

CHAPTER V.

THE PRESENT PRACTICE AND UPON WHAT IT IS FOUNDED.

ARTICLE I.

UNITES LAW AND EQUITY PRACTICE.

Section 1. Chancery abolished and its powers transferred to supreme court. The present chapter will be devoted to an explanation of the principal features of the present practice, and to a brief discussion of the sources or materials upon which it is founded. As we have elsewhere seen, the old court of chancery has been abolished, and all legal and equitable jurisdiction and powers conferred upon the supreme court, which now administers all the remedies or relief which can be granted by the highest court of original jurisdiction in this State.

Section 2. The same judges sit at law or in equity. The present system not only unites legal and equitable actions and remedies, but it also requires their administration by the same judges in both classes of cases. There is one great advantage in this blending of the systems, which is the uniformity of the practice in many points which were exceedingly dissimilar under the old systems; and, since all remedies are administered by the same judge, that certainly which is so desirable in practice may be greatly promoted.

It may be that something has been lost by this change in the mode of holding courts, in so far as a constant study of one subject, or class of subjects, tends to render its possessor more familiar with the entire details of a particular branch of the law. But, if this were conceded, there is the corresponding gain of the experience of a learned judge who is familiar with other general principles which cannot fail to throw light upon all legal subjects which may require his consideration. If a judge who is deeply skilled in the principles of equity is required to preside over a trial at law, his general knowledge will be as available in securing justice as though his knowledge of equity were less, for, while he will regard the general rules of the common

In legal actions, legal forms and practice are adopted.

law, he will also desire to see the equities of the case so considered as to secure actual justice in the result of the trial.

Again, if a common-law judge is required to try an equity case, his convictions of the advantage of settled rules and principles will lead him to regard equity, while at the same time he will desire to see general and well-settled rules established as a guide in all similar litigations. The practical effect of requiring one judge to become familiar with all principles, whether legal or equitable, will be a tendency to a harmonious and uniform mode of administering remedies. There will be no occasion for a study of any branch of the law, to the exclusion of another equally important; and a constant study of both law and equity will give a broader culture and a more extended view of all the principles of the law.

Section 3. In legal actions, legal forms and practice are adopted. So long as there are legal rights and legal remedies, as distinguished from equitable rights and remedies, so long will it be necessary to employ the forms and adopt the practice of courts of law in obtaining legal remedies. It is not intended to state that there may not be many things in the practice which would be appropriate in all cases, whether the action were legal or equitable, for it is the object of the present system of practice to secure as great a uniformity in that respect as possible. But on the other hand, it is equally certain that it is impossible to secure uniformity in the various steps in the practice where the actions themselves are, in their nature, widely dissimilar, and even inconsistent or contradictory. The object of the actions may be the same in a certain sense, and yet the proceedings to secure the result must be materially different. In an action upon a promissory note, or for the foreclosure of a mortgage, the object in each of the cases may be the recovery of money; but the proceedings in the action upon the note would be those of a legal action, while those for the foreclosure of the mortgage would be those of equity, and in many respects the practice in the two actions would be widely different, under any system of practice whether tried in different courts by dif ferent judges, or tried in one court, which tries both legal and equitable actions. Again, the object of each of two different actions may be the recovery of damages, but the object of the action cannot affect the practice to be pursued in any kind of action one may choose to commence. For the breach of a con

In equitable suits equity forms and practice are adopted.

tract, or for an assault and battery, one may have a right of action against the same person, but the proceeding in the actions will differ in some respects, even in an action at law, as both these cases would be. But the contrast in this respect would be much greater between an action for the specific performance of a contract, or that of an action of replevin, in which so many of the steps in the progress of the actions would be so different, and in which the proceedings in the one action would be entirely inappropriate in the other.

It is the part of wisdom to recognize these natural distinctions and to give them full effect. In those actions in which the practice can be made very plain and simple, let it be done, and apply the rule to as many kinds of actions as practicable. But in other actions in which the proceedings must be more complex and technical, and which must be carried on by many different and successive steps, and which must be moulded to secure the rights of distinct parties having separate interests, it is evident that the practice must differ from that of simpler actions.

Section 4. In equitable suits equity forms and practice are adopted. The remarks in the last section have anticipated what might have been said here. The Code has adopted many of the principles of equity practice, and to that extent has rendered a study of its principles and rules desirable if not necessary. That system of practice had many advantages over the common law in those cases where mere equities were to be dealt with. Those advantages are retained under the existing practice, and, although the mode of proceeding has been changed in many particulars, yet the essential principles of equity practice are still in force, and in all equitable suits must be applied.

Section 5. A judgment or a decree is rendered according to the requirements of the particular case. As an illustration of the rule that the practice must be varied to suit the nature of the action, the mode of rendering a judgment or decree is valuable.

In an action of ejectment the judgment provides for the recovery of the possession of land; in an action of replevin for the recovery of the possession of personal property; in an action for the breach of a contract, or for a tort, it provides for the recovery of a sum of money as damages, while in an action of an equitable nature the decree might necessarily be far more complicated in its details.

In actions of a legal nature the judgments are generally

Enforcement of judgments and decrees.

uniform, simple and invariable, according to the nature of the case, as has been seen in some of the instances just enumerated. But, in equitable actions, such a brief entry of a decree would be impracticable, and this results from the nature of the case. In an equitable suit the relief given must be such as to answer all the particular exigencies of the case fully and circumstantially; it must make binding and authoritative declarations concerning the rights alleged in the pleadings; it must direct many things to be mutually done and suffered, and must trace out the conduct to be respectively observed by the several parties to the suit, even though those parties may be very numerous, and sustaining various relations, and where, perhaps, some of those named as defendants have a like interest and object as the plaintiff. But this is not the only difference, for, in an equity suit, the court may retain the cause until by successive orders all of the ends of justice in reference to all the parties interested have been effectually secured or carried out.

Section 6. Enforcement of judgments and decrees. As this subject will be treated at length in a subsequent place, it is only necessary to remark that a judgment in an action at law, and a decree in equity, have each of them appropriate and effective methods for securing their enforcement, by proceedings against the property or the person bound to obey them.

Section 7. Uniformity of general practice. While there is a diversity in the practice, corresponding to the nature of the action, yet, there is a very general uniformity in the practice, in relation to such matters or steps as may be similar in all actions. An instance of this may be seen in the case of a summons, which is used for the commencement of all actions whether legal or equitable in their nature.

So, too, the general principles of pleadings are uniform, and the only difference is in the character of the allegations required to sustain particular actions or defenses. Again the general mode of trying actions, and of introducing evidence on the trial, has been so modified as to render the practice quite uniform. And, finally, the mode of entering judgments or decrees, as well as of bringing appeals from them, has been rendered as uniform as was practicable. And, in brief, the object most to be desired in legal proceedings, is a uniformity in the general practice so far as that is attainable; and where there must be a difference in the methods, that there shall be as much uniformity in each