Perhaps the obstacle which has seemed greatest to the courts in preventing a complete union of law and equity is the require ment common to the State Constitutions that the right of trial by jury shall remain inviolate. This is construed to mean a pres ervation of the jury trial right substantially as it was at the time of the original adoption of the Constitutions. In view of the historical practice of jury trials in courts of law, this means in effect that in modern substitutes for action at law, jury trial is a matter of right, while in equitable claims no such right exists. Many courts in protecting the constitutional right continue to force a division of all actions into "law actions" and "equity actions." A more convenient rule and one more in keeping with the code principle is followed in some States, where the question of the form of trial is not allowed to affect the pleading in advance of the trial. If an issue arises at the trial as to the existence of a right to jury trial in either party, it is then determined by the nature of the issues developed in the pleadings in the light of the historical method of trying such issues.
Another important characteristic of the code is its emphasis upon pleading facts, not conclusions of law or evidence. Fact pleading was to be substituted for the issue pleading of the corn mon law. This part of the code reform has been comparatively unsuccessful, because no clear line of demarcation exists between statements of fact and statements of law. An additional change wrought by the code is the adoption of the equity principles of greater freedom of joining parties and of rendering judgments in part for or against the various parties, as the justice of the case may require (the split judgment of equity). In spite of the fact that the code reform has not met with the same degree of success in all the States, it seems in general to have been in accord with the desires of the people for simpler judicial procedure. Modern plans for further reform are all in the direction of a greater simplification of practice.
The system inaugurated by the New York Code of 1848 has been adopted in the following jurisdictions: Alaska (19oo) ; Ari zona (1864) ; Arkansas (1868) ; California (185o) ; Colorado (1877); Connecticut (1879) ; Indiana (1852) ; Iowa (1851); Idaho (1864); Kansas (1859) ; Kentucky (1851) ; Minnesota (1851) ; Missouri (r849) ; Montana (1865) ; Nebraska ; Nevada (186o) ; New Mexico (1897); New York (1848) ; North Carolina (1868) ; North Dakota (1862) ; Ohio (1853) ; Oklahoma (1890) ; Oregon ; Porto Rico (19o4) ; South Carolina (187o) ; South Dakota (1862) ; Utah (187o) ; Washington (1854) ; Wyoming (1869) ; Wisconsin (1856) ; a total of 28 States and two Territories. Of the above States four—Arkansas, Iowa, Kentucky and Oregon—still retain a formal distinction between actions at law and suits in equity, although both are heard in the same court and by the same judge or judges. The code was adopted in Florida in the reconstruction days following the Civil War, but on restoration of the former Government it was sup planted by a modified common-law system. This is the only case where code pleading, once adopted, has been repudiated.
The non-code States are generally classified as common-law States and as "quasi code" or "quasi common law" States accord ing to their nearness of resemblance to the common-law system or to the code system. But in no jurisdiction is the common-law system in force in its entirety. All the States have made some
approach to the code principles. In the non-code States in gen eral, the formal distinctions between law and equity actions are maintained, although considerably broken down, especially by the presence of statutes allowing "equitable defences" in actions at law. Often, in these States some distinctions between the forms of action are maintained, as between tort and contract ; but even here the minute distinctions of the common law as between tres pass and trespass on the case have been abolished.' The follow ing may be treated as the "quasi code" or "quasi common-law" States : Massachusetts, Mississippi, Alabama, Maryland, Tennes see, Georgia, Texas and Michigan. The following may be treated as common-law States : Delaware, District of Columbia, Florida, Illinois, Maine, New Hampshire, New Jersey, Rhode Island, Vermont, Virginia and West Virginia. In New Jersey where the equity and law courts are entirely distinct, a practice act was adopted in 1912 for the law courts, which was an advanced system based on the English practice (N.J. Laws, 1912, p. 377). This act has had a salutory effect on a recent New York revision of the code (192o). The code of practice in Louisiana is based upon the civil law of that State.
A uniform simplified procedure in equity for the Federal courts throughout the country has been established under statutes which enact that "the forms and modes of proceeding in suits of equity and of admiralty and maritime jurisdiction in the district courts shall be according to the principles, rules and usages which belong to courts of equity and of admiralty respectively," and which also authorizes the U.S. Supreme Court to establish rules of practice. U.S. Rev. St. § 913 (28 U.S.C.A. § 723 [U.S. Comp. St. § 1536]) ; U.S. Rev. St. § 917 (28 U.S.C.A. § 73o [U.S. Comp. St. §1543])• In 1912, by use of this rule-making power the Court succeeded in greatly simplifying the equity practice of the lower Federal courts.
On the law side of the Federal courts, difficulties arise because the controlling "Conformity Act" (originally passed in 1872) provides that "the practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the (federal) district courts shall conform as near as may be, to the practice, pleadings and forms and modes of proceed ing existing at the time in like causes in courts of record of the state within which such district courts are held" (U.S. Rev. St.
'This is true even in Illinois, whose "pleading and practice are not only derived from the common-law system, but they are in fact that system, modified, however, by some legislation, which still leaves them the nearest approach to the English law of procedure, as it existed before the passage of the Judicature acts, now remaining any where in the world" (35 N.Y. State Bar Assn. Rep. 85o). Some States provide merely for the joining of counts in trespass and case (Ala. Code, 2907, § 5,329; R.I. Gen. Laws, 1923, § 4,874)•