record so as to show it.2 To take such course was to inflict a grievous punishment upon the client for the mistake of his counsel; a punishment, moreover, which was not required by any consideration of public policy. 3 At present under such circumstances, the established practice of the Supreme Court is to remand the case to the District Court with directions to allow the plaintiff to amend his pleadings so as to show the existence of the necessary jurisdictional requirements; or if both parties unite in the request, the Supreme Court will itself permit the amendment and retain the case. Nor are the consequences of a remand with leave to amend necessarily very serious. If, after the amendment has been made, the defendant does not traverse the existence of the jurisdictional facts, or if, having traversed them, they are proved, it has been held that without trying the case de nova a judgment or decree on the merits may be entered upon the old verdict or findings of fact.1 391. Legal and Equitable Procedure May Not Be Intermingled. The rule that legal and equitable procedure may not be intermingled has been rigidly adhered to. Texas, from the time of its admission into the Union, had no separate Courts of equity and no distinct equity procedure. A citizen of New York brought suit in the United States Court for the District of Texas against a citizen of Texas by filing a petition in that Court in which he described himself as lawfully possessed of four negroes, slaves for life, to wit, Billy, a negro man of dark complexion, aged about 12 years. of the value of $500; Lindsay, a negro man of dark complexion, aged 22 years, of the value of $1,000; Betsy, a mulatto woman of light complexion, aged about 30 years, and of the value of $800, and Alexander. a boy of very light 2 Hodgson vs. Bowerbank, 5 Cranch, 303. Kennedy vs. Georgia State Bank, 8 How. 586. * Grand Trunk Western Ry. Co. vs. Reddick, 160 Fed. 898; Parker Washington Co. vs. Cramer. 201 Fed. 878. complexion, aged about 4 years, and of $400 value. His petition went on to say that he casually lost the same out of his possession and that they came into the possession of the defendant by finding, and that the defendant, though often requested so to do, had refused to deliver them to the plaintiff. The plaintiff alleged his damage to be $5,000. Thus far the petition was strictly a declaration in trover. It contained a prayer for process and that upon trial of the cause "your petitioner may have a judgment in specie for the said negroes, together with damages for the detention of the same and also the costs of suit," and then ended with a prayer for such other and further relief as should be in accordance with right and justice. In other words, to a common law declaration in trover were annexed prayers for equitable relief. The defendant pleaded that the title of these negroes had been arbitrated between the plaintiff and the person under whom defendant claimed them and had been decided in favor of the latter. The plaintiff in reply alleged that the award was not binding. The jury found a verdict for the plaintiff for $1,200, the value of the negro slaves in the suit, with six and a quarter cents damages. The plaintiff then released the judgment for $1,200 and the Court ordered that the defendant return to the plaintiff the four negroes and pay him six and a quarter cents damages and costs of suit. The defendant appealed to the Supreme Court. CHIEF JUSTICE TANEY delivered the decision; he said: "The common law has been adopted in Texas, but the forms and rules of pleading in common law cases have been abolished, and the parties are at liberty to set out their respective claims and defenses in any form that will bring them before the court. And as there is no distinction in its courts between cases at law and equity, it has been insisted in this case, on behalf of the defendant in error, that this court may regard the plaintiff's petition either as a declaration at law or as a bill in equity. Whatever may be the laws of Texas in this respect, they do not govern the proceedings in the Courts of the United States. And although the forms of proceedings and practice in the State courts have been adopted in the district Court, yet the adoption of the State practice must not be understood as confounding the principles of law and equity, nor as authorizing legal and equitable claims to be blended together in one suit. The Constitution of the United States, in creating and defining the judicial power of the general government, establishes this distinction between law and equity; and a party who claims a legal title must proceed at law, and may undoubtedly proceed according to the forms of practice in such cases in the State court. But if the claim is an equitable one, he must proceed according to rules which this court has prescribed (under the authority of the Act of August 23, 1842), regulating proceedings in equity in courts of the United States. There is nothing in these proceedings which resembles a bill or answer in equity according to the rules prescribed by this court, nor any evidence stated upon which a decree in equity could be revised in an appellate court. Nor was any equitable title set up by" *** "the plaintiff in the court below. It was a suit at law to try a legal title." *** “Here the matter in issue was the property in these negroes. The verdict does not find that they are the property of the plaintiff or the defendant, but finds for the plaintiff their value, which was not an issue. It ought, therefore, to have been set aside upon motion of either party, as no judgment could be lawfully entered upon it."1 392. In Federal Courts Strictly Equitable Defenses Cannot Be Made at Law.-Many defenses can now be made directly at law which formerly could have been made only in equity. Where the change in the common law is due to decisions of the Courts holding in effect that the earlier rulings prohibiting such defenses were erroneous, there is in principle no reason why they may not now be made in the Courts of the United States. It would not be safe to affirm without a very thorough search and analysis of all the decisions of the Supreme Court and of the subordinate Federal tribunals, that none of the legislative extensions of the power of the parties to set up equitable defenses in an action of law 1 Bennett vs. Butterworth, 11 How. 669; Fenn vs. Holme, 21 How. will be recognized in the Federal Courts. Still the general principle that in those Courts equitable and legal rights and remedies are to be kept separate and enforced in separate proceedings is clearly recognized and on the wholly firmly adhered to.1 393. Federal Legal Procedure.-Attention will be first given to the practice and procedure on the law side of the Federal Courts. It is expedient that the differences between the procedure of the Federal Court sitting in any particular State and the State Courts therein shall be few. The more nearly they are alike, the more likely it is that justice will be furthered. The great diversity among the several States themselves in matters of pleading and practice is unfortunate. It has been thought that greater uniformity and greater simplicity and despatch might be brought about if Congress authorized the Supreme Court to prescribe rules governing pleading and practice in the Federal Courts on their law sided as it now does with reference to their equitable jurisdiction. The adoption by the several States of these Federal rules, would result in uniformity of procedure, not only between the Courts of the States and of the United States, but among the former as well. 394. Federal Process Prior to Conformity Act.Up to this time the problem has been approached from the other side. As early as 1789 Congress made temporary provision for assimilating Federal to State process. In 1792 a permanent statute on the subject was enacted. By it the process in the Federal Courts was to be the same in each State, respectively, as had in 1789 been used by the highest Courts of the latter. Many years afterwards what is now known as the Conformity Act was adopted. 395. The Conformity Act.-That enactment prescribes that the practice, pleading, forms and modes of proceeding in 'Platte Valley Cattle Co. vs. Bosserman-Gates Live Stock & Loan Co., 202 Fed. 693. civil causes, other than those in equity and admiralty, in the Federal Courts of original jurisdiction shall conform as nearly as may be to the practice, pleading, forms and modes of proceeding existing at the time in like causes in the Courts of record of the State in which the District Courts are held. any rule of Court to the contrary notwithstanding. The Supreme Court said: "The purpose of the provision is apparent upon its face. No analysis is necessary to reach it. It was to bring about uniformity in the law of procedure in the Federal and State courts of the same locality. It had its origin in the code-enactments of many of the States. While in the Federal tribunals the common law plead ings, forms and practice were adhered to, in the State courts of the same district the simpler forms of the local code prevailed. This involved the necessity on the part of the bar of studying two distinct systems of remedial law, and of practicing according to the wholly dissimilar requirements of both. The inconvenience of such a state of things is obvious. The evil was a serious It was the aim of the provision in question to one. 396. Conformity Statute Does Not Affect Province of Judge and Jury.-By the law of Illinois a judge is required to give all his instructions in writing, and he may not otherwise add to or modify them. The jury are permitted to take the written instructions with them to the jury room. In Nudd vs. Burrows (supra), one of the parties had requested the judge to give his charge and all of it in writing and to refrain, as the Illinois judges are required to do, from any comment on the facts. The Supreme Court, after using the language quoted in the preceding section, said: "The personal administration by the judge of his duties while sitting upon the bench was not complained of. No one objected, or sought a remedy in that direc tion. We see nothing in the Act to warrant the conclusion that it was intended to have such an application. If the proposition of the counsel for the plaintiff in error be correct, the powers of the judge, as defined by 1 Nudd vs. Burrows, 91 U. S. 441. |