or Continuance of any, wrongful Act, or for the specific Performance of any Covenant, Contract, or Agreement, it shall be lawful for the same Court, if it shall think fit, to award Damages to the Party injured, either in addition to or in substitution for such Injunction or specific Performance, and such Damages may be assessed in such Manner as the Court shall direct. The difficulties met by this English legislation have not been so serious in the United States, and there is little legislation of similar character in this country.1 3. Transfer of causes from law to equity or from equity to law. Under the old practice a plaintiff who failed in a suit in equity because he was found to have an adequate remedy at law or for some other reason not affecting the merits such as impracticability of the remedy in equity, had to begin a new action at law. Similarly, a plaintiff who sought relief at law which could be given only in equity had to bring a new suit in equity, if indeed he could do that, since there were decisions holding that bringing the action was a binding election not to seek equitable relief on the same cause of action.2 This resulted in substantial and unnecessary expense in every such case, and in some cases the Statute of Limitations had run on the plaintiff's cause of action before he found out that he had sued in the wrong court. Where law and equity are administered in the same court but by different procedures, as in a considerable number of the United States, these difficulties could readily be met by providing that an action or suit brought on the wrong side of the court might be transferred to the other side of the court, with appropriate amendment of the pleadings. Such statutes have been enacted in a number of the non-code states, and a statute applicable to the federal courts was enacted by Congress in 1915. Typical statutes follow: UNITED STATES JUDICIAL CODE.3 SEC. 274a. That in case any of said courts shall find that a suit at law should have been brought in equity or a suit in equity should have been brought at law, the court shall order any amendments to the pleadings which may be necessary to conform them to the proper practice. Any party to the suit shall have the right, at any stage 1 But see N. J. Rev. Stat. (1937) § 2.29–10. 2 But cf. Restatement, Contracts (1932) § 382; Restatement, Judgments (1942) § 65, Comment f. 3 Enacted March 3, 1915, 38 Stat. 956, as part of the bill which also authorized equitable defenses in actions at law in the federal courts. Now 28 U. S. C. § 397. of the cause, to amend his pleadings so as to obviate the objection that his suit was not brought on the right side of the court. The cause shall proceed and be determined upon such amended pleadings. All testimony taken before such amendment, if preserved, shall stand as testimony in the cause with like effect as if the pleadings had been originally in the amended form. REVISED STATUTES OF MAINE (1944) c. 100.1 § 15. When, in an action at law in the superior court, it appears that the rights of the parties can be better determined and enforced by a judgment and decree in equity, the court may, upon reasonable terms, strike out the pleadings at law, and require the parties to plead in equity in the same cause and may hear and determine the cause in equity. § 16. When in any equity proceeding in the supreme judicial court or in the superior court, it appears that the remedy at law is plain, adequate, and complete and that the rights of the parties can be ` fully determined and enforced by a judgment and execution at law, the court may, upon reasonable terms, strike out the pleadings in equity and require the parties to plead at law in the same cause in the superior court, which court may hear and determine the cause at law. § 17. When in an action at law commenced in the superior court and pending in the supreme judicial court, sitting as a law court, it appears that the rights of the parties can be better determined and enforced by a judgment and decree in equity, the supreme judicial court may, upon reasonable terms, strike out the pleadings at law and require the parties to plead in equity in the same cause; and thereupon the action shall be transferred to the equity docket for the same county and be heard and determined in equity. In those states which still have separate courts of law and equity, this procedure of transfer seems unavailable,2 although there would seem to be no reason why some statutory provision for removal from one court to the other of actions or suits brought in the wrong court might not be provided for. 4. Unification of legal and equitable procedure. None of the methods heretofore discussed eliminates all the difficulties resulting from separate law and equity procedure. In consequence, the most usual form of legislative change to meet these difficulties has been 1 Originally Me. Laws 1893, c. 217, §§ 1-3. 2 Cf. the decision of the New Jersey Court of Errors and Appeals in San Giacomo v. Oraton Invt. Co., 103 N. J. Eq. 273 (1928). some kind of unification of legal and equitable procedure. The reasons for such change are stated in two important discussions of the problem thus: First Report OF THE COMMISSIONERS ON Practice and Pleadings, NEW YORK (1848) 67-74. THE chief object of this title is to declare the leading principles which lie at the foundation of the whole proposed system of legal procedure, and without which, in our judgment, very few, if any essential reforms can be effected in remedial law. We refer to the abolition of the distinction between actions at law and suits in equity, and of forms of such actions and suits. This principle it is proposed to declare by section 62, which provides that "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." In our remarks upon this section we shall consider separately, the two propositions which it involves.2 The first is, the abolition of the distinction between actions at law and suits in equity. The separate jurisdictions of law and equity, exercised by distinct tribunals, as they existed in this state up to the adoption of the new constitution, were borrowed from similar institutions in England, with such modifications, as the genius of our people rendered necessary. In the early history of the English law, there was but one system of jurisprudence, and one form of tribunal by which it was administered. We refer to the courts of common law. In the progress of time, the unbending rigor of common law rules was found to be a grievance, which rendered necessary the exercise of some judicial power, by which the severity of the common law might be relaxed. The establishment of the court of chancery, the original design of which was to soften the rigor of the common law, and to do complete and perfect justice, by means of the peculiar forms of proceeding with which it was invested, where injustice would otherwise have followed, was the result. In the exercise of its functions, new principles were adopted, new modes of proceeding devised, and powers, some of them exclusive of and others concurrent with the courts of law, became the means, by which its jurisdiction was administered. 1 Title I of Part II of the proposed Code of Procedure, entitled "Of the Form of Civil Actions". 2 Only so much of the report as relates to the first proposition is given here. For the Commissioners' views as to abolition of the forms of action, see pp. 144-146, supra. With these attributes, that court was incorporated into the judicial establishments of this state; and until it was abolished by the new constitution, it continued to exist, and to exercise substantially the same powers as exercised by the court of chancery in England. Its forms and modes of proceeding, not merely in enforcing the substantial rights of parties, but in the ordinary proceedings by which suits were conducted, were essentially different from those of the common law courts; and not merely in the formal conduct of litigation, but in the substantial rules by which rights were to be determined, it had built up as distinct a system as it is possible to conceive. The result was, in this state, as it has ever been in England, since the separate establishment of this court, a conflict of jurisdiction, and a difference of judicial opinion, as to the precise boundary which separated the powers of law and equity; leading to a call on the part of the people, for such a course of measures, as would ensure the attainment of substantial justice, and remove the embarrassments in the organization of the judiciary establishment, by which there was good reason to fear, it had too often been defeated. In the course of the discussions in the convention, on this subject, upon the proposition to blend the two jurisdictions in one court, the confusion and injustice resulting from the former system of separate tribunals, was maturely considered, and resulted in the adoption, by an almost unanimous vote, of the provision of the constitution abolishing the court of chancery, and declaring that "there shall be a supreme court, having general jurisdiction in law and equity." (Art. 6, sec. 3.) A reference to the debates of that body, will show that this result was effected, by the conviction which was entertained, of the injustice of subjecting a party whose rights were involved, to the uncertain chances in the selection of the proper form, by which they were to be determined. And it is not a little singular, that this important change in the judicial establishment of the State, owes its origin mainly to the fact, that this injustice was the result, rather of the modes of proceeding, than of the rules of determination adopted by the several legal and equitable tribunals.1 The history of jurisprudence, both in this state and in England . . . affords a most convincing proof of the wisdom of the measure adopted by the people of this state, in abolishing the distinction between law and equity tribunals. Notwithstanding their separate existence, they had, under the institutions of this state, but one common object, the administration, of justice-depending not upon the mere discretion of the court, but ascertained by fixed and certain rules of law. And yet, while they were kept distinct, though their jurisdictions continually encroached upon each other, there were certain rules, not well defined, but yet existing, by which their powers 1 A lengthy quotation from the debates in the state constitutional convention of 1846 is omitted. were distinguished. It is, therefore, no matter of surprise, that the books are filled with cases, in which the injustice has been imposed upon parties, of suffering the loss of a substantial right, because of a mistake in the choice of a forum, before which its enforcement was sought. If it were necessary, scores of cases might be cited, in which, after a long and protracted controversy upon the merits, the cause ultimately turned upon the question of mistaken jurisdiction. FIRST REPORT OF THE JUDICATURE COMMISSION, ENGLAND IN commencing the inquiry which we were directed by Your Majesty to make, the first subject that naturally presented itself for consideration was the ancient division of the Courts, into the Courts of Common Law, and the Court of Chancery, founded on the well known distinction in our law between Common Law and Equity. This distinction led to the establishment of two systems of Judicature, organized in different ways, and administering justice on different and sometimes opposite principles, using different methods of procedure, and applying different remedies. Large classes of rights, altogether ignored by the Courts of Common Law, were protected and enforced by the Court of Chancery, and recourse was had to the same Court for the purpose of obtaining a more adequate protection against the violation of Common Law rights than the Courts of Common Law were competent to afford. The Common Law Courts were confined by their system of procedure in most actions, not brought for recovering the possession of land, to giving judgment for debt or damages, a remedy which has been found to be totally insufficient for the adjustment of the complicated disputes of modern society. The procedure at Common Law was founded on the trial by jury, and was framed on the supposition that every issue of fact was capable of being tried in that way; but experience has shown that supposition to be erroneous. A large number of important cases frequently occur in the practice of the Common Law Courts which cannot be conveniently adapted to that mode of trial; and ultimately those cases either find their way into the Court of Chancery, or the Suitors in the Courts of Common Law are obliged to have recourse to private arbitration in order to supply the defects of their inadequate procedure. The evils of this double system of Judicature, and the confusion and conflict of jurisdiction to which it has led, have been long known and acknowledged. The subject engaged the attention of the Commissioners appointed in 1851 to inquire into the constitution of the Court of Chancery. Those learned Commissioners, after pointing out some of the defects in the administration of justice arising out of the conflicting systems |