, 1877-05-05

tons 1T law hnd SUITS III cllhnCclN is not
abolished, but expressly preserved.
Under our present statute the common
law and Chancery Jurisdictions are dis
tnct and must be exercised separately !;
the form Of the pleadiugs in the two
Jurisdictions are the same, but the mode
of proceeding to invoke those .iurisdic-
tions and the mode OF exercising them
is as different as the difference bctN cen
a horse chesnut and II chesnut horse. If
this be so, then in an action to recover
possession of real estate, founded on le-
gal title in the plaintiff, no equitable IT,
tie can be pleaded or adjudlcated." Such,
squsrely put, are the points made by
plaintiff upon the main question.
The decision of these motions involves
a consideration ot what is sometimes
termed the Code Procedure, and some.
times the Reformed Procedure. The
practice in our courts is regulated by
what is nominally u Code, and the great
question, which is OF necessity prelimi-
nary to the clrcumspect adjudication of
the particular concrete points presented,
is now fairly raised Have we really a
Code in all the length and breadth and
height and depth OF significance which
that word in its common use, as applied
to the new American civil practice i'm
plies To determine this, four inquiries
suggest themselves
1st. What was the state of affairs,
that prompted the adoption Of the Codes'
Cd. What was the end proposed to
be effected by their adoption
3D.. Whether our Legislature had
power by appropriate legislation to effect
that end.
4th. Whether our Code, so called, is
intended and adapted to effect it,
Time and the pressing business Of the
term, forbid any extended or detailed
pursuit of these inquiries A broad and
comprehensive, and withal somewhat
hasty treatment, is all that can be afford
ed in this opinion.
Before proceeding to discuss these
questions severally, the mind naturally
calls before it and passes in review the
legislation, Federal and Territorial, bear
ing upon them, The general statutes of
the United States seem to have no reie-
vance. The pertinent ones are the Or,
ganic Act aud the recent Declarat0ry
Practice Act for tie Territories. The
former cnacts, that "thc Legislative
power ui the Territory, shall extend to
all rightiul subjects of legislation, not
inconsistent with the constitution and
laws of the United States, and that the
judicial power "slall be vested in Su
prcme Court, District Courts, Probate
Courts and Justices of the Peace. n
The jurisdiction Of the several Courts
herein provided for, both appellate and
original. and that Of the Probate Courts
and Justices Of the Peace shall be as
limited as the law" y ~ The said
Supreme and District Courts respectively
shall possess chancery as well rs COM
mon law jurisdiction. Writs OF
error, bills of exception and appeals shall
be allowed in all cases from the final
decisions Of said District Court to the
Supreme Court, under such regulations
as may be prescribed by law, and "writs
Of error, and appeals from the final dc
cison of said Supreme Court shall be
allowed and may be taken to the Su
preme Court OF the United States" "
(Sec. 69) 1t is unnecessary to recite the
decInratory Act at length. Suffice it TO
say, that it declares in the most uhmis
taxable language, that Territorial Legis-
latnrrs have the power 10y appropriate
legislation to merge and mingle in one
jurisdiction and one form of procedure
all that heretofore has been cognizable
at law and in chaucery.
The pertinent Territorial legislation
consists OF the various successive ana
related Civil Practice Acts ofthe Ter
ri,ory and their amendments. In these
enac;ments, laid down hy way oi tounda'
tion of them. are the following leading
and controlling provisions
First. in the original Code Of the Ter
ritory enacted in 1854, and revised and