1. Question. Has this section been amended since its passage in 1818? Answer. It has in 1849, which amendment reads as above.

2. Q. How did this section read in 1848?

A. As follows:

§ 62. [1848.] The distinction 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 or prevention of private wrongs, which shall be denominated a civil action.

Questions.

3. Q. Does the constitution allow of the abolishing of these distinctions?

4. Q. Can an equitable defence be interposed to an action founded on a legal claim or title? 5. Q. Can a civil action under the Code, or a petition under the statute, or both, be resorted to, in cases of partition of real estate?

6. Q Is the rule as to parties defendants in an action to recover possession of land, changed so as to make it the same as in all equitable actions?

7. Q. Is the writ of scire facias abolished, and a civil action under the Code substituted in its place?

8. Q. Are substantial rights or causes of action interfered with by abolishing the distinction between legal and equitable remedies under this section?

9. Q. Does the abolition by the Code of the forms of action as heretofore used necessarily in all cases abolish the names of such actions?

3. Q. Does the constitution allow of the abolishing of these distinctions?

A. In Reubens agt. Joel, 3 Kern, 488, March 1856, SELDEN J., Scovill agt. Griffith, 2 Kern, 515, June, 1855. HAND J., and In Ten Eyck agt. Houghtailing, 12 How., 529, General Term, March, 1856, GOULD J., It was decided that the legislature has not the constitutional power to reduce all actions to one homogenious form. Instead of being abelished, the essential distinctions between actions at law and suits in equity are by sections 253, 254, 266, 270, 271, 275 and 276 of the Code expressly preserved. There is not any section in the Code that abolishes causes of action; nor, it seems, one that has been entirely able to confound them. In Lynch agt. Rome Gas Light Co., 42 Barb., 593, General Term October, 1864, MORGAN J., said: "the former distinction between decrees in equity and judgments in actions at common law, has not in my opinion been abolished by the Code, but is inherent in the two systems. Without doubt, the codifiers undertook to assimilate proceedings in law and equity, by a formal declaration to that effect. Yet in the subsequent provisions of the Code, the proceedings are separated in the modes of use and by various other characteristics which clearly distinguished them as two separate systems. It is impossible to harmonize the proceedings throughout; and the most the codifiers have accomplished is to make the declaration above mentioned, while they have carefully preserved a clear line of separation between them, the mode of administering relief in equity is not changed by the Code; and the court now as formerly pronounces the judgment, and with the same effect upon the rights of the parties.

4. Q. Can an equitable defence be interposed to an action founded on a legal claim or title? A. Dobson agt. Pearce, 2 Kern, 165, December, 1854, W. F. ALLEN J.; Crary agt. Goodman, 2 Kern, 267, March, 1855, JOHNSON J., and In Burgett agt. Bissell, 5 How., 192, Special Term, January, 1851, WELLES J., It was decided that under the Code, a defendant it an action upon a judgment, may allege and prove as a defence, that it was obtained by fraud. Facts alleged by way of defence, which would have been good cause for relief in a court of chancery, under the Code, are proper matters of defence to an action at law, therefore in an action to recover the possession of land, founded upon the legal title' held by the plaintiff, the defendant may allege and prove, as a defence, that he is equitably the owner of the premises and entitled to the conveyance thereof.

5. A. Can a civil action under the Code, or a petition under the statute, or both be resorted to in cases of partition of real estate?

A. In Myers agt. Rasback, 4 How., 83, Special Term, June, 1849, GRIDLEY J., it was decided that, the old suit in equity for the "partition of lands, is now merged in the "civil actions," under the Code, and as such may be prosecuted by summons and complaint It is a "regular" proceeding, in as much as it is prosecuted by and against regular parties, and according to the same forms of proceeding and rules of practice with other actions under the Code.

In Row agt. Row, 4 How., 133, Special Term, October, 1849, BARCULO J., it was decided that proceedings for partition by petition under the Revised Statutes are saved by the Code: and such proceedings may also be instituted, and are just as valid now as before the Code became a law.

6. Q. Is the rule as to parties, defendants in an action to recover possession of land, changed so as to make it the same as in all equitable actions?

A. In Waldorph agt. Bortle, 4 How., 359, Special Term, June, 1850, PARKER J., it was decided that an action to recover real property or possession of lands, should be brought against the person in the actual occupation or possession of the premises; but it is now proper in such action to add as defendants, all persons who have or claim an interest in the controversy, adverse to the plaintiff.

7. Q. Is the writ of scire facias abolished, and a civil action under the Code substituted in its place?

A. In Cameron agt. Young, 6 How., 373, Special Term, December, 1851, MARVIN J,, it was decided that the remedy heretofore given by scire facias to obtain execution of a judgment, is superseded by the provisions, for an action therefor under the Code. The defendant, by answer, can make any defence which he was allowed to make by plea to the writ of scire facias, or the declaration contained in the writ. The judgment in effect will be the same as under the superseded practice, and the lien upon the land will be preserved. The writ of scire facias, both, as a public and private remedy, is entirely abol ished by the Code. See also Alden agt. Clark, 11 How., 211, General Term, January, 1855, JAMES J.

In Frink agt. Morrison, 13 Abb., 83, Special Term, July, 1861, LEONARD J., it was decided that the laws of 1850 (ch. 295) providing for the enforcement of judgment liens against the real estate and chattels real of deceased judgment debtors, upon proceedings before the surrogate, do not supersede the necessity of proceedings in the nature of a scire facias, before an execution can be issued after the death of a judgment debtor?

8. Q. Are substantial rights or causes of action interfered with, by abolishing the distinctions between legal and equitable remedies, under this section?

A. In Burgett agt. Bissell, 5 How., 194, Special Term, January, 1851, WELLES J., it was decided that to remedy the evils of a party being turned, out of a court of law, after incurring great expense and delay on the ground that he had mistaken his forum-that his case belonged to a court of equity; and vice versa, was the object of this section (§ 69) of the Code, abolishing the distinction between actions at law and suits in equity.

In Howe agt. Peckham, 6 How., 230, Special Term, October, 1851, MASON J., it was decided that the Code does not abolish, in any manner, the causes of action as they existed before the passage of that act, nor does the Code, in any manner, define what shall constitute a cause of action. It leaves all this matter as it was at common law, or in equity, before the Code was passed. The cause of action in case is as perfectly preserved under the Code, although the form of prosecuting the particular action is abolished, as it existed before the Code.

In Giles agt. Lyon, 4 Comst., 602, April, 1851, GARDINER J., it was decided that the Code has abolished all distinction between legal and equitable remedies, and blended them into one system, combining or professing to combine the principles peculiar to each; to be administered thereafter, through the same forms, and under the same appellation. In Braman agt. Johnson, 26 How., 27, Court of Appeals, October, 1853, LOTT J., it was decided that the supreme court had jurisdiction of equitable actions concerning property, where the amount in controversy was less than one hundred dollars, commenced prior to the act of 1862, repealing the statute depriving the chancellor of such jurisdiction.

PER CONTRA, (in supreme court) Shepard agt. Walker, 7 How., 47, Special Term, June, 1852, MARVIN J.; Marsh agt. Benson, 19 How., 415, General Term, July, 1860, PARKER J. In Sarsfield agt. Van Vaughner, 38 Barb., 444, General Term, November, 1862, LEONARD J., it was decided that the constitution of 1846 and the Code, have by necessary im plication, abolished every limitation in respect to the amount in controversy heretofore required to give jurisdiction, in actions of an equitable nature entertained only in the court of chancery. The act of 1862 repealing the section of the Revised Statutes which required the court of chancery to dismiss every suit involving less than one hundred dollars, did not revive any former rule, because the Code had previously repealed that section of the Revised Statutes, and abolished every other rule limiting the jurisdiction of

the supreme court. Yet, where the amount in controversy is less than one hundred dol lars, this may effect the question of costs.

In Phillips agt. Gorham, 17, N. Y. R. 270, June, 1858, JOHNSON J., it was decided that the constitution does not restrict the power of the legislature to provide for both le gal and equitable relief in the same action, and the Code authorizes the joinder of legal and equitable causes of action. It has been settled in the court of appeals, that an equitable defence could be interposed to a legal clain; and all the inconvenience, which is alleged as an argument against allowing legal and equitable grounds of claim to be united in a complaint, equally exists against allowing an equitable answer to a legal claim.

In New York Central Insurnace Company agt. National Protection Insurance Company, 14 N. Y. R., 90, June, 1856, DENIO J., it was decided that as the courts of the state are now constituted, they apply legal and equitable rules and maxims indiscriminately in every case. In a suit which could not formerly have been defended at law, but as to which the defendant would have been relieved in equity, he can now have the like relief in the first action; and such relief consists in denying to the plaintiff a right to re

cover.

In Laub agt. Buckmiller, 17 N. Y. R., 626, June, 1858, ROOSEVELT J., it was decided that legal and equitable relief may be asked for in one action, and a plaintiff claiming under a defective deed and showing sufficient grounds for its reform, may have the same remedy as if he had brought two actions, one to reform the instrument and the other to enforce it as reformed.

In Cropsey agt, Sweeny, 28 Barb., 311, General Term, May, 1858, SUTHERLAND J., it was decided that the abolition, in words, of the distinction between actions at law and suits in equity by the Code, was not intended to break up the well settled fundamental principles and limits of common law and equitable jurisdiction, and open to courts, as proper subjects of judicial discretion, a class of moral wrongs or misfortunes, not before the legitimate subjects of legal or equitable investigation or redress. Nor can it be supposed that the abolition of the forms of actions was intended to create or justify novel and unprecedented causes of action.

In Cole agt. Reynolds, 18 N. Y. R., 76 September, 1858, HARRIS J., it was decided that the course of proceeding in actions at law and suits in equity under the Code, is now the same. Whether the action depend upon legal principles or equitable, it is still a civil action, to be commenced and prosecuted without reference to this distinction. But while this is so in reference to the form and course of proceeding in the action, the principles, by which the rights of the parties are to be determined, remain unchanged, The Code has given no new cause of action. In some cases parties are allowed to maintain an action who could not have maintained it before, but in no case can such an action be maintained where no action at all could have been maintained before upon the same state of facts. In The New York Ice Co, agt. The North Western Insurance Co., 21 How., 298, Court of Appeals, June, 1861, COMSTOCK J., it was decided that a complaint may unite legal and equitable causes of action, and if the evidence sustains either the legal or equitable cause of action, judgment should be rendered accordingly, whether the cause be tried at the circuit or at special term. (See Sage agt. Mosher, 28′ Barb., 287, Voorhis agt. Childs Executors, 17 N. Y. R., 358, New York Ice Co. agt. The North Western Insurance Co., 20 How., 424.)

In Goulet agt. Asseler, 22 N. Y. R., 228, September, 1860, SELDEN J. said; although the Code has abolished all distinction between the mere forms of action, and every action is now in form a special action on the case, yet actions vary in their nature, and there are intrinsic differences between them which no law can abolish. It is impossible to make an action for a direct aggression upon the plaintiff's rights by taking and disposing of his property, the same thing, in substance or in principle, as an action to recover for the consequential injury resulting from an improper interference with the property of another, in which he has a contingent or prospective interest. The mere forinal differences between such actions are abolished. The substantial differences remain as before. The same proof, therefore, is required in each of these two kinds of actions as before the Code and the same rule of damages applies. Hence, in an action in which the plaintiff establishes a right to recover, upon the ground that the defendant has wrongfully converted property, to the possession of which the plaintiff was entitled at the time of the conversion, the proper measures of damages still is, the value of the property; while in an action in which the plaintiff recovers, if at all, upon the ground that the defendant has so conducted himself in the exercise of a legal right in respect to anothers property, as unnecessarily and improperly to reduce the value of a lien which the plaintiff could only enforce at some subsequent day, the damages must, of course, depend upon the extent to which that lien has been impaired.

9. Q. Does the abolition, by the Code, of the forms of actions as heretofore used necessarily in all cases abolish the names of such actions?

A. In Barnes agt. Willett, 19 How.. 564, Special Term, September, 1860, SUTHERLAND J., it was decided that in an action against a sheriff for an escape, which formerly might have been an action of debt, under the statute, or of case at common law, where the plaintiff alleges the requisite facts charging the prisoner in execution, his arrest, detention

and subsequent escape from the sheriff, and rests his right to recover the precise amount of the judgment, with costs of the action, upon the statute, and claims only such amouut, it is not a violation of the statute to call such an action an action of debt.

What is the result of the decisions under this section?

1. (3 Q.) The legislature has not the constitutional power to reduce all actions to one homogenious form. The essential distinctions between actious at law and suits in equity are by the Code expressly preserved. Neither has the distinction between decrees in equity, and judgments in actions at common law been abolished by the Code.

2. (4 Q.) Under the Code a defendant may allege and prove facts which would have been good cause for relief in a court of chancery, as proper matters of defence to an action at law.

3. (5 Q.) A suit in equity for the partition of lands is, under the Code, merged in the "civil actions," provided by the Code. Whether proceedings for partition by petition, under the Revised Statutes, can now be resorted to Dub.

4. (6 Q. An action to recover possession of real estate, should be brought against the person in actual occupation, and under the Code, all other persons who have or claim an interest in the controversy adverse to the plaintiff, should be added as defendants.

5. (7 Q.) The remedy heretofore given by scire facias, to obtain execution of a judgment, is superseded by the provisions for an action therefor under the Code. The writ, both as a public and private remedy, is entirely abolished by the Code

6. After the death of a judgment debtor, an execution against his real estate and chattels real cannot be issued and enforced under the act of 1850, until proceedings in the nature of a scire facias have been taken.

7. (8 Q.) The Code does not in any manner, abolish the causes of action as they existed before its passage. Nor does the Code, in any manner define what shall constitute a cause of action. This section was intended to remedy the evils of a party being turned out of court on the ground that he had mistaken his forum.

8. The distinction between legal and equitable remedies is abolished by this section of the Code, which professes to combine the principles peculiar to each into one system.

9. The supreme court had jurisdiction of equitable actions concerning property, where the amount in controversy was less than $100, commenced prior to the act of 1862, repealing the statute depriving the chancellor of such jurisdiction. But where the amount is less than $100, it may effect the question of costs.

10. Legal and equitable relief, or claims, may be united in one action in the same complair.t. And the courts as now constituted may apply legal and equitable rules and maxims indiscriminately in every case.

11. But the abolition, in words, of the distinction between actions at law and suits in equity by the Code, was not intended to break up the well settled fundamental principles and limits of common law and equitable jurisdiction. The principles by which the rights of the parties are to be determined, remain unchanged. The Code has given no new cause of action.

12. If the evidence sustains either a legal or equitable cause of action united in the complaint, judgment should be rendered accordingly, whether tried at the circuit or at special term.

13. (9 Q) It is no violation of the Code to call an action against a sheriff for an escape, an action of debt, as formerly, where the same relief is demanded, as was formerly claimed in such action.

$70. Parties to an action, how designated.

In such action, the party complaining shall be known as the plaintiff, and the adverse party as the defendant.

1. Question. Has this section been amended since its passage in 1848? Answer. It has in 1849 which amendment reads as above.

2. Q. How did this section read in 1848?

A. As follows:

63. [1848.] In such action, the party complaining shall be known as the plaintiff, and the adverse party as the defendant.

71. Actions on judgments, when and how to be brought.* No action shall be brought upon a judgment rendered in any court of this state, except a court of a justice of the peace, between the same parties, without leave of the court for good cause shown, on notice to the adverse party; and no action on a judgment rendered by a justice of the peace, shall be brought in the same county within five years after its rendition, except in case of his death, resignation, incapacity to act, or removal from the county, or that the process was not personally served on the defendant, or on all the defendants, or in case of the death of some of the parties, or where the docket or record of such judgment is or shall have been lost or destroyed. *(Same as § 64 in 1848.)

Questions.

2. Q. What is defined to be an action on a judgment?

3. Q. When does the statute of limitations run against a justice's judgment after transcript filed?

4. Q. When and how does a justice's judgment become a judgment of the county court? 5. Q. Is an action in the nature of a creditor's bill an action on a judgment?

6. Q. What jurisdiction have justices of the peace in actions on justices' judgments? 7. Q. Can an assignee of a judgment sue it in his own name, without leave of the court? 8. Q. What provision has the statute made for bringing actions against stockholders individually of joint stock companies, after judgment obtained against the company? 9. Q. Does this section apply to judgments rendered before the Code took effect? 10. Q. Can a justice's judgment be set off or set up as a counter claim, by an assignee of the judgment within five years from its rendition?

11. Q Does this section apply to district courts in the city of New York?

2. Q. What is defined to be an action on a judgment?

A. In Wheeler agt. Dakin, 12 How., 540, Special Term, 1856, EMOTT J., it was decided that an "action on a judgment" is an action to recover of the defendant the amount due on the judgment, as any other money demand would be recovered, using the judgment only as evidence of the amount of the debt-such as actions of debt on judgment under our former system.

In Dean agt. Eldridge 29 How., 218, General Term, November, 1864, PARKER J., it