The codes provide for only one form of civil action, and abolish the distinction between actions at law and suits in equity and the forms of those actions and suits.1

The strict construction given to pleadings at "There is but one form of action in this state. In the administration of justice our courts are untrammeled by distinctions between legal and equitable remedies. They are all abolished, and parties are no longer common law has been superseded by the provision that "the allegations of a pleading must be liberally construed with a view to substantial justice between the parties,"2 and in order that the code should be administered in a liberal spirit the New York code provides that "the rule of the common law that a statute in derogation of common law shall be strictly construed, shall not apply to this act," 3 and this provision is contained in all of the codes.

1 N. Y. Code, Civ. Pro., Sec. 3339.

At common law an action must be prosecuted in the name of the person who has the legal interest;4 under the codes the equitable rule is adopted that every action must be prosecuted in the name of the real party in interest, except that an executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted.5 An assignee of a non-negotiable chose in action may therefore bring an action in his own name, instead of being compelled to use the name of his assignor, as at common law. All fictions in pleading are abolished and a party may unite legal and equitable causes of action, if they arise out of the same transaction,6 and the defendant may interpose either legal or equitable defenses, or both, in any civil action.7 But while the distinction between actions at law and suits in equity have been abolished by the codes, the distinction between law turned out of court because they make mistakes in the remedies they pursue. On the contrary, if the case they make entitles them to any remedy, it must be granted where an answer has been interposed, even in disregard of the prayer for relief."

Bulkley vs. Staats, 31 Hun. (N Y.), 137 at p. 138. N. Y. Code Civ. Pro., Sees. 494- 495; Cal. Code Civil Pro., Sec.

443. 3 Code Civ. Pro., Sec. 3345. 4 1 Chitty PL, 2; Triplett vs. Scott, 12 111., 137.

5 N. Y. Code Civ. Pro., Sec. 449.

6 N. Y. Code Civ. Pro., Sec. 484; Cal. Code Civ. Pro., Sec. 427.

7 N. Y. Code Civ. Pro., Sec. 507; and equity, that is, the rights and duties which are respectively legal and equitable, have not been, and in the nature of things could not be abolished by any code of procedure,8 and such issues in an action as were at common law, submitted to a jury, must still be so tried, by reason of the provisions in the Federal and State constitutions preserving the right of trial by jury. But technical language in pleadings is no longer required, and the stereotyped forms of the commencements and conclusions of pleadings as used at common law and in equity are swept away.

Cal. Code Civ. Pro., Sec. 441.

"To construct a perfect pleading, according to the ideal of the codes, requires (1) an accurate knowledge of the law, that is of the primary and remedial rights and duties of the parties under any given circumstances; (2) a familiarity with the facts of the particular case, which involves the discriminating with certainty between those facts that are material and issuable and those which are evidentiary; and (3) the ability of writing the English language to the extent at least of composing a clear, distinct, and brief narrative of these material facts, in such manner that the legal rule which they involve shall be inferred from them with certainty." 9

The form of the pleadings under the codes is more nearly analagous to that in use in equity pleading, except that the common law rule as to the effect of failing to deny a material allegation contained in a pleading rather than the equitable rule prevails, and each material allegation in a pleading which is not controverted, is deemed to be admitted, and need not be proved.10

8 Pomeroy's Code Remedies (3rd Ed.), 836.

9 Pomeroy's Code Remedies (3rd Ed.), 839. 10 N. Y. Code Civ. Pro., Sec. 522;

Cal. Code Civ. Pro., Sec. 462.

Another distinguishing feature of the code system of pleading is that, whereas at common law two or more persons cannot be joined as plaintiffs in an action upon a contract, unless they have a joint interest in the subject matter of the action,11 they may be so joined under the codes, even though their interests are several.

So, at common law, where two or more persons are severally liable on the same written contract, they cannot be joined as defendants in the same action, but each must be sued separately;12 under the codes they can all be sued in the same action. So also it was improper at common law to join as defendants in an action based either on contract or tort, an individual, and one who acts in a representative capacity, e. g. an administrator or receiver, for the reason that a judgment at common law is a unit and must affect all against whom it is rendered in the same way;13 but under the codes any kind of judgment may be rendered to which the plaintiff shows himself entitled, and several judgments or decrees may be rendered against different defendants.14 It frequently happens, in those jurisdictions where the distinction between legal and equitable forms of pleadings is retained, that a plaintiff or complainant is turned out of court, if he sues at law, and on the trial proves a case for equitable relief, or if he files a bill in equity, and the court decides that he has an adequate remedy at law. Under the code system of pleading, the suit will not fail, but the appropriate relief will be granted, even though the plaintiff has misconceived the nature of the relief to which, under the allegations of bis pleading, he is entitled.15 It also frequently happens that in an action at law a defendant has a defense which, in equity, would defeat the plaintiff's claim, but he is not allowed to present the defense in an action at law, and is obliged to file a bill in chancery for that purpose, and have the action at law stayed until the determination of the equitable action.16 Under the code practice the defense may be made in the original suit.17 A legal remedy cannot be obtained on an equitable title at common law;18 in an action under the reformed procedure such relief can be granted.19 Notwithstanding the abolition of forms of action by the codes, the distinction between remedies still exists, and on the same state of facts a party may elect what remedy he will pursue, where such an election exists at common law.20