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of procedure and modes of redress adopted by the Courts of Common Law and Equity respectively, state their opinion, that "a practical and effectual remedy for many of the evils in question may be found in such a transfer or blending of jurisdiction, coupled with such other practical amendments, as will render each Court competent to administer complete justice in the cases which fall under its cognizance."

In like manner the Commissioners appointed in 1850 to inquire into the constitution of the Common Law Courts make, in their Second Report, a very similar recommendation. They report that "it appeared to them that the Courts of Common Law, to be able satisfactorily to administer justice, ought to possess in all matters within their jurisdiction the power to give all the redress necessary to protect and vindicate Common Law rights, and to prevent wrongs, whether existing or likely to happen unless prevented;" and further that "a consolidation of all the elements of a complete remedy in the same Court was obviously desirable, not to say imperatively necessary, to the establishment of a consistent and rational system of procedure."

In consequence of these Reports several Acts of Parliament have been passed for the purpose of carrying out to a limited extent the recommendations of the Commissioners.

By virtue of these Acts the Court of Chancery is now, not only empowered, but bound to decide for itself all questions of Common Law without having recourse, as formerly, to the aid of a Common Law Court, whether such questions arise incidentally in the course of the suit, or constitute the foundation of a suit, in which a more effectual remedy is sought for the violation of a common law right, or a better protection against its violation than can be had at Common Law. The Court is further empowered to take evidence orally in open Court, and in certain cases to award damages for breaches of contract or wrongs as at Common Law; and Trial by Jury, the great distinctive feature of the Common Law, has recently, for the first time, been introduced into the Court of Chancery.

On the other hand, the Courts of Common Law are now authorized to compel discovery in all cases, in which a Court of Equity would have enforced it in a suit instituted for the purpose. A limited power has been conferred on Courts of Common Law to grant injunctions, and to allow equitable defences to be pleaded, and in certain cases to grant relief from forfeitures. These changes, however, fall far short of the recommendations of the Common Law Commissioners, who in their Final Report expressed the opinion, that power should be conferred on the Common Law Courts "to give, in respect of rights there recognized, all the protection and redress which at present can be obtained in any jurisdiction."

The alterations, to which we have referred, have no doubt introduced considerable improvements into the procedure both of the

Common Law and Equity Courts; but, after a careful consideration of the subject, and judging now with the advantage of many years experience of the practical working of the systems actually in force, we are of opinion that "the transfer or blending of jurisdiction" attempted to be carried out by recent Acts of Parliament, even if it had been adopted to the full extent recommended by the Commissioners, is not a sufficient or adequate remedy for the evils complained of, and would at best have mitigated but not removed the most prominent of those evils.

The authority now possessed by the Court of Chancery to decide for itself all questions of Common Law has no doubt worked beneficially. But the mode of taking evidence orally before an Examiner, instead of before the Judge who has to decide the case, has justly caused much dissatisfaction; and Trial by Jury, whether from the reluctance of the Judge or of the Counsel to adopt such an innovation, or from the complexity of the issues generally involved in the suit, or because the proceedings in other Courts, has been attempted in comparatively few cases.

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In the Common Law Courts the power to compel discovery has been extensively used, and has proved most salutary; but the jurisdiction conferred on those Courts to grant injunctions and to allow equitable defences to be pleaded has been so limited and restricted,

the former extending only to cases where there has been an actual violation of the right, and the latter being confined to those equitable defences where the Court of Chancery would have granted a perpetual and unconditional injunction, that these remedies have not been of much practical use at Common Law, and Suitors have consequently been obliged to resort to the Court of Chancery, as before, for the purpose of obtaining a complete remedy.

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Much therefore of the old mischief still remains, notwithstanding the changes which have been introduced; and the Court of Chancery necessarily continues to exercise the jurisdiction of restraining actions at law on equitable grounds, and even claims to exercise that jurisdiction in cases where an equitable defence might be properly pleaded at Common Law. . . .

We are of opinion that the defects above adverted to cannot be completely remedied by any mere transfer or blending of jurisdiction between the Courts as at present constituted; and that the first step towards meeting and surmounting the evils complained of will be the consolidation of all the Superior Courts of Law and Equity, together with the Courts of Probate, Divorce, and Admiralty, into one Court, to be called "Her Majesty's Supreme Court," in which Court shall be vested all the jurisdiction which is now exercisable by each and all the Courts so consolidated.

This consolidation would at once put an end to all conflicts of jurisdiction. No suitor could be defeated because he commenced his suit in the wrong Court, and sending the suitor from equity to law

or from law to equity, to begin his suit over again in order to obtain redress, will be no longer possible.

The Supreme Court thus constituted would of course be divided into as many Chambers or Divisions as the nature and extent or the convenient despatch of business might require.

All suits, however, should be instituted in the Supreme Court, and not in any particular Chamber or Division of it; and each Chamber or Division should possess all the jurisdiction of the Supreme Court with respect to the subject-matter of the suit, and with respect to every defence which may be made thereto, whether on legal or equitable grounds, and should be enabled to grant such relief or to apply such remedy or combination of remedies as may be appropriate or necessary in order to do complete justice between the parties in the case before the Court, or, in other words, such remedies as all the present Courts combined have now jurisdiction to administer.

Two somewhat different techniques have been used to bring about the procedural unification of law and equity, which may be described for the sake of brevity as the New York method and the English method.

(1) The New York method involves the formal abolition of the distinction between actions at law and suits in equity. The provision of the original New York code has already been quoted.1 The present provision of the New York Civil Practice Act, which may be taken as typical of the code provisions of this type, is as follows:

NEW YORK CIVIL PRACTICE ACT (1921).

§ 8. Only one form of civil action. There is only one form of civil action. The distinction between actions at law and suits in equity, and the forms of those actions and suits, have been abolished.2

The New York code and most of the other codes distinguish between a civil "action", which is "an ordinary prosecution in a court of justice against another party for the enforcement or protection of a right [or] the redress or prevention of a wrong",3 and a "special proceeding", which is "every other prosecution of a party for either of [these] purposes". Special proceedings include such judicial proceedings as habeas corpus, enforcement of mechanics' liens, applications to punish for criminal contempt in a civil action, and a considerable number of other proceedings of a rather miscellaneous char

1 In the Report of the New York Commissioners on Practice and Pleadings, p. 810, supra.

2 See also p. 147, supra.

3 N. Y. C. P. A. §4. There may also be a "criminal action", defined as "an ordinary prosecution in a court of justice by a party against another party for... the punishment of a public offense".

N. Y. C. P. A. § 5.

acter. The effect of the "abolition" of "the distinction between actions at law and suits in equity" under statutes of this type will be considered in this chapter.

(2) The characteristics of the English method of unified procedure have been well stated by Millar: 2

"The English statute proceeded differently. It explicitly faced the fact that, owing to the manner of the law's growth, the distinction between legal and equitable rules, though purely artificial, had so embedded itself in the fabric of the law as to be insusceptible of any outright abolition, and that what really was being aimed at in speaking of fusion was the concurrent administration of the two kinds of rules in the same suit when the circumstances so required. Resultingly, it enacted that 'in every civil cause or matter . . .3 law and equity shall be administered' according to a series of detailed provisions which followed, covering the various contingencies calling for that concurrent administration. To this was added a section regulating certain special situations involved in the change, which concluded with the significant declaration that 'generally in all matters not hereinbefore particularly mentioned, in which there is any conflict or variance between the rules of equity and the rules of the common law, with reference to the same matter, the rules of equity shall prevail.' Thus equity, as before, was to have the last word, but now that word was to be spoken in time to foreclose the adverse word of the common law. This difference between the two statutes in the manner of approach accounts in some measure, at least, for the smoother working of the English system in the present regard."

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The Illinois Civil Practice Act of 1933 follows the English model to a considerable extent. Section 31 of that Act provides in part as follows: 5

. . . there shall be no distinctions respecting the manner of pleading between such actions at law and suits in equity, other than those specified in this Act and the rules adopted pursuant thereto; but this section shall not be deemed to affect in any way the substantial averments of fact necessary to state any cause of action either at law or in equity."

1 See 1 Carmody, New York Practice (2d ed. 1929) § 11; Clark, Code Pleading (1928) § 20. This distinction between an "action" and a "special proceeding" is often very difficult to draw.

2 Millar, "The Old Regime and the New in Civil Procedure," in 1 Law: A Century of Progress (1937) 207, 224. Author's footnotes omitted.

3 Indicated omission in original text.

4 For a more detailed summary of the relevant provisions of the Judicature Act, 1873, 36 & 37 Vict. c. 66, see Chafee, Cases on Equitable Relief against Torts (1924) 259-260.

5 Ill. Rev. Stat. Ann. (Smith-Hurd) 1935, c. 110, § 155.

A rule of court adopted pursuant to the statute requires that every complaint be indorsed "at law" or "in chancery",1 and it may be doubted how far there is under this rule even the degree of procedural unification accomplished by the English statute.2

The Federal Rules of Civil Procedure provide as follows:

FEDERAL RULES OF CIVIL PROCEDURE (1938)

RULE 1. SCOPE OF RULES. These rules govern the procedure in the district courts of the United States in all suits of a civil nature whether cognizable as cases at law or in equity, with the exceptions stated in Rule 81.3 They shall be construed to secure the just, speedy, and inexpensive determination of every action.

RULE 2. ONE FORM OF ACTION. tion to be known as "civil action".

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There shall be one form of ac

The unification contemplated by these rules and by the statute under which they were promulgated thus appears to be procedural unification only, and so rather of the English than of the New York type.5

5. Problems of unified civil procedure. Problems resulting from legislative attempts partly or completely to unify legal and equitable procedure may arise from several sources.

(1) The substantive law which has developed at law and in equity is sometimes different. Where both systems are administered in one procedure, one must yield to the other where conflict occurs. The one to yield is always the law, either by reason of an express statutory provision as in England, or simply as a necessary consequence of

1 Illinois Rules of Practice and Procedure, Rule 9, Ill. Rev. Stat. Ann. (Smith-Hurd) 1935, c. 110, § 259.9. See also Rules 10 and 11, id. §§ 259.10259.11.

2 See Clark and Moore, "A New Federal Civil Procedure - II. Pleadings and Parties," 44 Yale L. J. 1291, 1292-1294 (1935).

3 Rule 81 provides in detail as to the proceedings to which the Federal Rules of Civil Procedure do not apply. These include proceedings in admiralty and bankruptcy; certain proceedings in copyright; proceedings in probate, adoption and lunacy in the United States District Court for the District of Columbia, except as to appeals; proceedings for admission to citizenship; habeas corpus, quo warranto, and forfeitures of property for the violation of federal statutes, except as to appeals; proceedings under several specified federal statutes; and proceedings in eminent domain, except as to appeals.

4 For the text of the statute, see pp. 14-15, supra. As to its constitutionality, see McCormick, "The Fusion of Law and Equity in the United States Courts," 6 N. C. L. Rev. 283 (1928).

5 But see Clark, "The Proposed Federal Rules of Civil Procedure," 22 A. B. A. J. 447, 449 (1936). Cf. McCaskill, "One Form of Civil Action, But What Procedure, for the Federal Courts," 30 Ill. L. Rev. 415 (1935).

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