that the distinction in question, whether just or unjust, wise or foolish, could not well be more emphatically enforced than in the case above referred to. A party plaintiff, showing a perfectly equitable claim against the party defendant, was nevertheless summarily turned out of court, merely because he failed to come in at the proper door. A few natural, if not very original, remarks may, perhaps, be general subject hereby suggested.

not out of place upon the

In the first place it is not unworthy of notice that, with reference to the mutual bearing of law and equity, eminent jurists have been by no means agreed in opinion, but rather "yes and no, with a medium between them." Their differences involve the several points, whether law should be made more elastic and flexible by equity, or equity more exact and unbending by law; whether the two should be blended in one system, or each remain distinct, though, as occasion may require, with mutual action and re-action; and whether the same court should exercise law and equity powers, or the respective jurisdictions be confided to distinct tribunals.

Upon the first of these points Sir Matthew Hale is reported to have said, "by the growth of equity the heart of the common law is eaten out." Upon the last, Lord Bacon expressed himself with epigrammatic and untranslatable point and vigor; thereby not wholly exemplifying the maxim "boni judicis est ampliare jurisdictionem" (the last word of which, however, Lord Mansfield suggested should be "justitiam"). Lord Bacon's words are: "Apud nonnullos receptum est, ut jurisdictio, quæ discernit secundum æquum et bonum, atque illa altera, quæ procedit secundum jus strictum, iisdem curiis deputentur : apud alios autem, ut diversis; omnino placet curiarum separtio. Neque enim servabitur distinctio casuum, si fiat commixio jurisdictionum, sed arbitrium legem tandem trahet." Bac. de Aug. Scient. lib. 8, ch. 3, aph. 45.

Passing over the innumerable aphorisms upon the subject which might doubtless be found in the intermediate centuries, the man of our own age-Judge Story-who might almost be called an idolater of equity jurisprudence, and did as much, perhaps, to illustrate and expound it as any individual of any age,

had still the candor to admit that there were opinions equally entitled to respect on both sides of the question as to the necessity and utility of equity in the shape which it has now assumed. Judge Story says : “Whether it would, or would not, be best to administer the whole of remedial justice in one court, or in one class of courts, without any separation or distinction of suits, or of the form or modes of proceeding and granting relief, is a matter upon which different minds in the same country, and certainly in different countries, would probably arrive at opposite conclusions. And, whether, if distinctions in rights and remedies, and forms of proceeding are admitted in the municipal jurisprudence, it would be best to confide the whole jurisdiction to the same court or courts, is also a matter upon which an equal diversity of judgment might be found to exist." Story's Equ. Jurispr. § 35. It should be added, however, that Judge Story's individual opinion upon the subject is doubtless expressed in the animated and rhetorical peroration of his great work, wherein, Aladdin-like, he calls up "the magnificent temple, reared by the genius and labors of many successive ages, to equity jurisprudence." Ib. § 1532. Per contra, over this dazzling structure, another American jurist, himself a distinguished commentator, and the successor of Judge Story in the Dane professorship of law at Cambridge, waves a wand, which might well scatter it like a pavilion of gilded cloud. Mr. Parsons says: "It is very difficult for a lawyer trained by the study of the books, and accustomed to the process and practice now in use, to avoid the conclusion, or at least the habitual opinion, that equity jurisprudence and law jurisprudence are divided by an actual difference, and by an hiatus which can not be filled. But an examination of the history of this difference on the one hand, and of its actual condition on the other, will show us that it is wholly artificial, and, if we may ever use the word, accidental. * * * If justice can be done in any case according to law, law should do it. If it can not be done without violation of law, it should not be done. It is quite unreasonable to maintain in this country, and in this age, a system which had no other origin than the necessity that arose from the

jealousies of independent courts centuries ago, in another land and under a different policy." 2 Parsons on Contracts, Preface, pp. 4, 7.

The distinction between law and equity immediately suggested by the judgment of Chief Justice Waite, relates to the matter of parties in those respective courts. First, the parties in a court of law. Is it right that there should be strict rules, demanding that every case be litigated between parties to the claim, and declining to recognize a standing in court until an action is so simplified as to meet this requisition. It hardly needs an argument to show, that the abrogation of this principle might lead to endless confusion. Says Baron Bramwell, "if the best known man in England were letting to the next best known man the best known property, it would still be necessary to prove who the parties were, and what they were dealing with." Wood v. Priestner, Law Rep. 2 Exch. 261. The very first step to justice between man and man, is to know precisely who makes the demand, and upon whom it is made. Leaving to men, a vote in town-meeting, even tossing up, would be a far feebler parody upon the administration of law, than to allow the intermingling in one suit, of parties having, perhaps, some connection with the subject-matter, but no substantially joint or identical interest. Suppose a man holding distinct promissory notes against ten different individuals, and desiring to settle up his affairs, and to should join them in one suit. even from uniting in one action ture against the same person, which the law allows to be done. But, in the case suggested, this confusion might be immeasurably and intolerably increased. One defendant might dény his signature, another plead payment, a third the statute of limitations, a fourth an off-set, and so on to the end of the decade; and the ensuing scene might fully warrant the remark of a facetious judge, that it was very extravagant to buy a ticket for the theatre, when one might attend the Court of Common Pleas for nothing. And it is needless to add, that the same wise restriction as to parties is applied alike to all causes and forms of action at law, even those in which

save trouble and expense, Confusion enough results several claims of like na

the greatest latitude is allowed. Thus, although it is a salutary rule, that all parties, directly or indirectly concerned in the commission of a wrong, may be joined as defendants in one suit; it is an equally salutary limitation of the rule, that such joinder is not permitted when different parties act, each for himself, in producing the same injury. A notable case of this kind, never reported, but distinctly remembered, occurred some years ago in Massachusetts, where a joint action was held not maintainable against a physician who prescribed, and an apothecary who put up, a noxious medicine.

And now comes in a court of equity, so called, and, as if to emphasize the charge of absurd inconsistency between the two cognate departments of jurisprudence, not merely allows parties having no identity of interest to take part in the same suit; but goes a step further, and forbids a suit upon any other condition. Such is the judgment in the case of Pollard v. Bailey, which dismissed the action for the very reason that it was an attempt to enforce a claim by one single party against another single party-the normal requisition in a court of law -and absolutely demanded that the litigation should assume the complicated shape which we have described as in ordinary cases so inconvenient and impracticable. Why is this? Let the chief justice of the supreme court inform us; "No stockholder is liable for more than his proportion of the debts. This proportion can only be ascertained upon an account of the debts and and stock and a pro rata distribution of the indebtedness among the several stockholders. The proper action, therefore, to enforce the liability is one in which such an account can be stated and distribution made. Such an action calls specially for the exercise of the powers of a court of equity, which can bring before it all the necessary parties and adjust all their rights. Every stockholder, when called upon to perform his obligation, has the right to require that the extent thereof shall then be determined once for all, as well that which he is under to his associate stockholders, as that to the creditors. * The provision, therefore, for a proportionate liability is equivalent to a provision for an appropriate form of equitable action to enforce it." Cent. L. J., vol. 2, p. 3.

This quotation, though directly applicable only to the particular circumstances of the case under consideration, very clearly explains the exceptional interference of equity with reference to parties. "Ex uno disce omnes." Whenever the course of a trial at law, which from its nature is speedy and summary, would be clogged and impeded by a multiplicity of parties, so that a presiding judge, and more especially a jury, would be hopelessly embarrassed and bewildered by a tangled web of side issues; then the tribunal ceases to accomplish its purpose of substantial justice, aud another is to take its place, whose course of proceeding, by the examination of parties, the deliberate inspection of papers, and the aid of subordinate officers, will, though comparatively dilatory, in the end draw order out of chaos, and it may be, prevent an interminable litigation.

It would be inconsistent with the plan of this article, to consider at much length any other ground of equity jurisdiction than that immediately involved in the case referred to. The point of parties, however, is closely connected with, if it does not rather make a part of, another department of jurisprudence, which is constantly brought into action, alike in law and equity—namely, pleading. Special pleading is perhaps more than anything else the scape-goat of all the maledictions which aggrieved ley gents shower upon the law. If men have claims, it is said, let them be permitted to state such claims in their own way, without the risk of forfeiting them by failure to cross a t or dot an i. We weary of these "apices litigandi." Let us have equity, not law. Now it may be remarked, in passing, and it is a somewhat curious fact, that the almost universal attempts of modern legislation to gratify this querulous demand, have touched pleadings at law far more than those in equity. And it is equally noticeable, that in England special pleading was never more rigidly exacted than it is at the present moment, except so far as it may be embraced in the late sweeping juridical reform. Pleading, when rightly understood, is grossly wronged by the popular notions relating to it. It is well defined as "the statement in a logical and legal form, of the facts which constitute the plaintiff's cause