, 1877-05-12

has virtually and to notable eXten
been tor ages IN vogue in chancery cases
There is nothing in the nature o
things incongruous in a chancellors sub
mltting every question of fact to a jury
There is no reason why an enlightened
jury with right concience should MOI
be as good chancellor to find tact q:
the most luminous big wig that evcl
nodded on the woOsack. Whenever the
unification Of law and chancery is grace
fully accepted as indeed an accomplished
fact, and but one set of rules, namely
those and those only which are dictated
by true equity are ever suffered To guide
the decision of either judge or jury, then
at length we have the decision ofth au-
thor of the Code triumphant-then We
have no longer law, no longer chancery
but more basal system than either
rooted and grounded in lore;" and
then it matters not where you draw the
shifting and somewhat vague and mys-
terious line between law and fact, OF
whether an enlightened jndge Or an en-
lightened jury I've your arbiter.
In view of the motives, which to my
mind must he presumed operative upon
the legislature in framing Practice Ac,
so worded as our own, am constrained
to the opinion, that the provisions OF
subdivision 4 Of Sec. 70 and those of Sec
206, had reference to the settlement and
mode OF trial of issues and not to tn,
preservation OF distinctions in jurisdic
tions. This opinion fortified by the fac,
that, under sections 20 and 80, counter,
claims without definition or restriction
are freely admitted ia all actions for pur.
poses Of defense.
The meaning Of counter-claim under
Codes is well settled. 1t means any
claim counter to plaintiffs rights of recov.
cry, and was even in the early days oil
the New York Code, before the amend
ment expressly providing for equitable
dcfences, by an overwhelming weight Of
authority in that State, construed to al
low in answer to a strictly legal demand
a defence that in equity could only have
been pleaded by cross-bill. Our stat.
ute providing for the recovery Of the
possession II real property does not, as
statutes of some other states do, confine
this controversy to the legal rights of the
parties, 1t leaves tue action open to be
defended exactly as any other.
No way seems left to cvade the conclu
sion that the ancient common-law, and
chancery jurisdictions are merged by
virtue of our Practice Act, and that the
equitable defence here pleaded ought
not on the ground of its equitable ma
ture to be stricken out.
Thus we take our position in long
procession of states--New York, Ohio,
Kentucky, WISCONSIN, Iowa, Missouri
Kansas, Minnesota, Texas, California,
and / may say Pennsylvania, in all which,
equities Gun be set up ia an action which
at common law would he called, If any
thing, ejectment In most of these the
power to do this is most explicitly be-
slowed, but in none is il more real than
in this Territory.
There remains, then, only the question
on the irst motion, Are the legal and
equitable deienccs inconsistent and in
capable of standing together2
1t is urged, that both titles cannot be
true, and that pleading of either con
fesses the untruth of the other
In regard to this question, there is a
mass of authorities, but find no aid from
any. The mind seeks for some firmeI
basis of decision than mere precedent, ol
the jarring opinions Of men diyersely
educated and of divergent habits o'
thought. On the surface of the discuss
ion, appears the obvious danger of in
justice in very many cases, unless q de-
iendant be permitted to present what
ever facts making against plaintiff
claim he may have. II plaintiff ought
not to recover, the aim Of the action il
to find out. But the truth may not bt
found. if search be not exhaustive. II
might well be, that a plaintiff had
claim he believed just and one that he
ought not to be allowed to cnferce. The