, 1877-05-05

1863, Sec. ,, 1863.
This section is substantially identical
with first section in all the Codes, and
in each forms, MS in our own it formed, n
fitting prelude, a comprehensive an
nounccment, of the harmonious body Of
rules associated with it.
Next, in the amendments Of 1871,
there was section substituted for the
one just noticed, it is as follows sail
common law forpls o. action are hereby
abolished, but the distinction between
actions at law and suits in chance!y shall
be preserved, and pleadingS and pro-
ccedIngs in actions Mt law shall be as
prescribed in this act; and plcadings
and proceedings in suits in chancery shall
be as prescribed by, the laws OF the
United States and by the rules prescribed
by the Supreme Court Of the United
States, for Courts of Equity of the
United States" Sec. 2, 1871. This sec
tion rcmitted all causes to he distributed
into two separate Jurisdictions, revoking
in one main feature what the previous
Legislation had sought to accomplish.
Afterwards, in 1878, new revised
Code came into being, in which the sec
ton, corresponding to those already
noted, reads thus "Theg shall he in
this Territory, hereafter but one form of
action for the enforcement and protec-
tion of private rights and the redress Of
private wrongs, which shall be called n
civil action" Sec. 9, 1878. Different
wording obtains in this section from that
in those which had preceded it, and the
difference attracts important attention
What separation, If any, is to he given
to this difference, will fnll within the
scope of this opinion. Thele is, also,
contained in the Code 81 1878, the pro
vision following: "When the relief
sought is of an equitable nature, the
complaint shall he addressed to the
Judge of the district in which the action
is brought" Sub. 4, Sec. 70, 1878. This
provision is one of four directions, com.
posing the seventy-third Section Of the
Statute, ane enumerating what the com
plaint shall contain. Its existence Rng-
gests the query, whether its requirement
be intended merely as means of dcsig-
mating on the face Of the complaint what
from the first is evidently for trial with
out jury, or, whether it he the out
cropping Of an intent to preserve the
distinction between cases at law and in
equity rs revised IN the Statute Of 1871.
In connection with this portion Of Sec
tion seventy-three, the two hundred and
sixth Section also possesses interest, 1t
is rs follows "An issue Of law shall be
tried by Court, unless referred upon by
consent as provided in this Act. An
issue of fact shall be tried by jury, un-
less a jury trial be waived, or reference
he ordered, as provide,fin this Act The
waiver of jury, or agreement tr refer,
shall be by stipulation of the parties
given in open Court and minutes in the
records progded, that nothing herein
contained shall be so construed as To re-
strict the chancery powers of the Judges,
or, to authorize the trial of any issue by
Jury, when the complaint alleges an
equitable claim, and seeks relief solely
upon the ground of equities of the de-
mand made by the pleadings in the
action l Incline to regard these di.
r,ctions in Sections rs and 200 as very
nearly related, and as expressive OF q
single intent in the legislative mind.
What that intent is, will be gathered
from what have yet to say
The striking parts Of the act of 1873,
ms touching the motions before the court,
are not all presented, without the re-
pealing clauses be brought into view
They are sections 20 and 900 and run IN
this wise: Sec. 20, "All the forms Of
pIeadings heretofore existing in civil ac-
tions inconsistent with the provisions of
this act are abolished, and hereafter the
forms of pleading and the rule by which
the sulliciency of the pleadings is to be
determined shall be as herein prescribed"
! Sec. 900, "All acts and parts OF acts,
heretofore enacted upon any subject mat
ter contained in this act, he and the