, 1877-05-05

tlOn Drought against MN rs iOIIONS :
"Thc answer of the defendant shall con-
tain 4 4 2. A stateWent Of any new
matter constituting defence or counter
claim, in ordinary and concise language
without repetition" (Sec. so, and THE
defendant may set forth 10y answer as
many dcfenccs and counter claims as he
may have" (Scc. SD These provis-
ions were devised and intended solely to
relieve II doubt, as to what latitude Of
defence might be allowed under the
Code practice. aud excel in cXplicitncSs
and apparent libcrality the correspond
ing portions OF our previous Codes.
(Scc. A, 4j, 1854; Sec. 36, 81, 1860; Sec.
SO, 80, 1862 They were both repealed
by the amendments Of 1871 (Src ,, ~,
but were re.cnactcd in the new Code of
1878. (Sec 10, S0)
These are the leading and controlling
provisions of Congressional legislation
and of our Codes from 1854 to the pres,
ent day, which especially need to be
borne in mind as we enter upon the four
inquiries above propoundcd.
The first of those inquiries is, what
was the state of affairs that prompted
the adoption of the Codes, in tire various
states adopting them?
Previous to the Inauguration of the
Code practice, two distinct sets of courts
and two diverse systems of procedure
the common law and the cquitablc--prc
vailed, wherever prevailed the English
hw-the common law courts were impO-
tent 10 receive anything as good cause
ot action, unless it conformed to some
one or another of n few perfectly rigid
models, called the common law action.
The suitor was obliged to select the
model proper for his cause, Sometimes
it required nice discrimination to do
this: but always. il he failed, he lost his
suit, his time and his costs Justice
could not he done in an immense multi
ulde of cases, some of them of severest
hardship, simply because they could not
be brought into conformity with any
prescribed common law form. In an,
other vast class of cases, adequate end
complete relief could not he had, for the
reason that only very few kinds Of re.
lief could be given and in any one action
only one kind Of relief. Equity under
took to provide perfect remedy wher.
ever the law failed to give it. The iuris-
dictiOn Of the two sets of courts were
thus COMPLIMENTARY result was that
oitentimcs cause was mistakenly
brought in one jurisdiction, when it
should have been brought in the other.
The same delay, veXation and expense
ensued ns in the failure to make proper
election at law. Again, ii suitor made
a good beginning at law, he was liable
to be stopped midway in his suit or
have his judgement when obtained rem
dered unavailing or void, through the
jurisdiction by his appointment of coun-
ter proceedings in equity. So that for
the determination of one controversy he
might be put to the trouble Of two law
suits. These things and other emhar-
easements following in their train served
to render the attainment Of justice I'm
certain, slow, tedious, costly, veXatious
aud oppressive. The mischief was deep
seated. 1t was radical 1t inhered in
the very existence of the two Jurisdictions.
But it needed no harsh act Of violence
to cure it. The two jurisdictions were
eiftt te; they were odious and were totter-
ing to the grave. Here was patriarch
al and antiquated pair, welded for half
thousand years; the elder about eight
huudred years old, hard and masculine
the younger aged five hundred years,
hclpmeet, gentle and compliant, redress.
ing in the household what her sterner
mate refused to touch on both the garb
of buried centuries to both, the ways
and language of forgotten generations
in the former the scrupulosity, in the lat
ter the tardincss, in both the mannerism
and procrastination and painfulness of
extreme decrcpitude between them, a
divided authority, which, in so far as it
departed from perfect unison of senti-
ment and action, was irrecOncilably at
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