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that a replevin may be had, and an action of replevin brought, upon other kinds of illegal taking, besides that by way of a distress; but in no other case is the proceeding now known in practice.

NEBRASKA CODE OF CIVIL PROCEDURE, Sec. 2. The distinctions between actions at law and suits. in equity, and the forms of all such actions and suits heretofore existing are abolished; and in their place there shall be hereafter but one form of action which shall be called a civil action.

POMEROY, CODE REMEDIES (1876), secs. 28, 29.

28. In the year 1848 the Legislature of New York adopted the Code of Procedure. The fundamental principles of this code, so far as it is now necessary to notice them without going into detail, are the following: (1) The abolition of the distinction between suits in equity and actions at law, and the distinctions between legal and equitable procedure, so far as such an amalgamation or consolidation is possible with the judicial institutions which have been retained; (2) The abolition of all common-law forms of action, and the establishment of one ordinary, universal means by which rights are maintained and duties enforced in a judicial controversy, called a "civil action;" (3) The application to this "civil action" of the familiar equitable rather than legal rules, methods and principles, so far as practicable, and especially in reference to the parties, the pleadings, and to the form and character of the judgment. It is evident, from the most cursory examination of this code, that its authors, and presumably the legislature, intended that the various provisions which they introduced in reference to the parties to an action, to the pleadings therein, and to the judgment which might be rendered, and which were a concise statement of the well-settled doctrine of equity relating to these subjects, should apply fully and freely to all actions which might thereafter be brought, and should. not be confined to actions that, under the former practice, would have been equitable. Whether the courts have at all times recognized and carried out this plain intention of the statute may well be doubted. I have been careful, in the above statement as to the union of law and equity. The language of the code is as follows: "The distinctions between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished; and there shall be in this State hereafter but one form of action for the enforcement or protection of private rights and the redress of

private wrongs, which shall be denominated a civil action." A subsequent provision, based upon the clause in the State constitution which preserves the jury trial "in all cases in which it has heretofore been used," recognizes the fact that the jury trial must still be retained in all actions which were before denominated legal, with the unimportant exception which formerly existed,-namely, where the trial will require the examination of a long account,-and thus, in express terms, prevents an absolute identity in the judicial proceedings which result in remedies that would have been legal and in those which result in remedies that would have been equitable. As I have already said, the perpetuation of the very fundamental element of difference between the trial at law and the trial in equity-and the perpetuation cannot be avoided as long as the constitution remains unchanged in this respect-prevents a complete removal of the difference between legal and equitable procedure and the absolute union of law and equity into one homogeneous system. How far the differences between the final remedies which courts of law granted exclusively, namely, the recovery of a specific tract of land or of a specific chattel, and the recovery of money in the form of pecuniary compensation, and the infinite variety of special remedies which courts of equity were accustomed to grant, may in themselves prevent such a perfect union, I shall discuss and attempt to determine in a subsequent chapter.

29. The New York Code, in respect to the fundamental principles and provisions which I have stated, has been adopted in twenty-two States and Territories of this country-in the States of Ohio, Indiana, Wisconsin, Iowa, Minnesota, Kentucky, Missouri, Kansas, Nebraska, Nevada, Oregon, California, North Carolina, South Carolina, Florida, Arkansas, Connecticut, and in the Territories of Washington, Montana, Idaho, Dakota, Wyoming, Arizona, Colorado. I need not now compare these different State and Territorial codes in their details; it is enough for my present purpose to say that they all embody the same three fundamental principles.





The history and constitution of the Courts in which an action is commenced, having been thus stated, it is time to proceed to the consideration of the steps taken in the action itself. Before doing so, however, it is right to state in what manner these formal steps are liable to be affected or controlled by the summary, or, as it is sometimes called, equitable jurisdiction, of the Courts, for the jurisdiction of the superior Courts is of two descriptions, summary and formal. The latter consists in the sanction given by the authority of the Court to those formal de cursu proceedings which constitute the ordinary and regular steps in a suit; thus, it is by virtue of its formal jurisdiction that the Court issues a writ to compel the defendant to appear; that it allows the plaintiff to sign judgment against him if he make default in pleading; that it issues process commanding the sheriff to convene a jury for the purpose of trying the cause; and, finally, that it awards execution in favour of the successful party. This is all done by virtue of its formal de cursu jurisdiction.

But the Courts have another sort of jurisdiction, a jurisdiction exercised in any stage of the suit in which it becomes necessary, and enabling them, in a summary manner, and on equitable principles, to prevent hardships, irregularities, and abuses, which would otherwise take place in the course of proceedings. This is called their summary jurisdiction, and is exercised by making rules and orders; not that every rule emanates from the equitable jurisdiction of the Court, some rules there are which constitute part of its formal de cursu proceedings; for instance, a rule to plead, is as regular a step as the plea itself. It is not, therefore, intended to state, that all rules, or all orders, emanate from the summary and equitable jurisdiction of the Court, but those only, on granting or refusing which, the Court or judge hears argument and exercises a discretion.

In treating of the summary jurisdiction of the Courts, we will inquire, Ist, in what cases it exists; 2ndly, how it is exercised.

First, then, when does it exist? It exists, either at common law, or under the provisions of certain acts of Parliament. So far as it exists at common law, it is calculated to effect one of four purposes. 1. To prevent the regulations of the Courts from being infringed. 2. To prevent their authority from being abused. 3. To prevent it from producing hardship

of a law for to gror time. 4. To enforce good conduct on the part of those who are peculiarly within their jurisdiction. (to officers hence Lawyers]).

First, then, the Court interferes summarily, to prevent breaches of its own regulations. Under this head do all those cases range themselves, in which it interferes to set aside proceedings for irregularity. In every case where a rule or regulation of the Court is infringed, it will, on application, set aside the proceeding which has infringed it. But it is most important to remember, that every application upon this score must be made as speedily as possible.

Secondly, The Court exercises its summary jurisdiction to prevent its own process or authority from being abused. Thus, if a designing person were, by false representations, to induce a poor ignorant man to sign a cognovit, or execute a warrant of attorney, the Court would relieve him. So, if a warrant of attorney were given to secure usurious interest. So, if a judgment were signed contrary to good faith. So, if a plaintiff vexatiously bring two actions for the same cause, the Court will force him to elect between them. In these cases, and such as these, the Courts interfere, in order to prevent their rules and their authority, created, as both are, for the advancement of justice, from being perverted and abused, so as to produce injustice and oppression. And it is plain that the administration of the laws would be in danger of falling into disrepute, were it not for this salutary exercise of their jurisdiction.

Thirdly The third class of cases in which the Courts exercise their summary jurisdiction, is, where it is necessary so to do, in order to prevent their own rules from producing hardship. Thus, where a defendant, through some accident, has not delivered his plea within the proper time, and judgment by default is signed against him, this, though illiberal, when done so hastily as to amount to what is called "snapping a judgment," is nevertheless regular, because the rules of the Court give the plaintiff a right to do


it. However, as it would be an extremely hard thing if he were to be shut out of a good defence by a slight mistake on the part of his attorney, the Court, to prevent this hardship, will interpose its summary jurisdiction in his favour, and will set aside the judgment upon proper terms. In a word, whenever the suitor can point out some great hardship likely to arise from a strict observance of the rules by which the practice of the Court is governed, there he may apply for relief, which, ordinarily, will be granted; unless, indeed, he be wilfully late in making application, or, unless the grant of relief to him, would impose hardship on the opposite party. But this relief is granted as a favour, not as a right, and the Court will, in bestowing it, impose any terms it thinks proper. Thus, it almost invariably imposes the payment of any costs which the other party may have incurred, and frequently, as for instance, in the case of setting aside a regular judgment, insists upon an affidavit of merits; and this is very right, for, how ridiculous would it be to relieve a defendant from a judgment when he has no meritorious defence to the action, but is only anxious to postpone the payment of a fair debt, and set up vexatious quibbling objections to a just demand.

Under this head are also to be ranked applications for further time to plead, orders for which are all considered in the light of relaxations of the strict practice of the Court, and so likewise are the applications so frequently made for leave to amend.

Fourthly. The Courts exercise their summary jurisdiction for the purpose of preventing misconduct in their own officers and persons immediately under their control. Thus, as attorneys are officers of the Courts, supposed to be always in attendance there, and invested as such with certain privileges and immunities, the Courts think themselves bound to enforce the strictest observance of good faith and propriety on their part, and will always listen to complaints founded upon their conduct as attorneys, I say as attorneys, for the Courts do not attempt to exercise control over their conduct in their own private affairs, which have nothing to do with their professional character.


The next step for carrying on the suit, after suing out the original is called the process; being the means of compelling the defendant to appear in court. This is sometimes called original process, being

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