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dence. From that day every practicing attorney in Pennsylvania has, at some time in his career, started from his sleep in the middle of the night in a cold sweat, wondering if he did give notice in that case on tomorrow's list.

Where an equitable defense is set up under the plea of payment with notice of special matter, the plea is a substitute for a bill in equity, and under it the jury may and should presume everything to have been paid which in equity and good conscience the defendant ought not to be compelled to pay. The nature of the plea, says Chief Justice Gibson,2 has frequently been misunderstood. It is not the general issue. As an equitable plea it makes room only for what would sustain a bill in chancery, and as a legal plea it makes room only for evidence of direct payment, or what is the equivalent of payment where the plea is directed by act of assembly. The various equitable defenses permitted under the plea may be classed under the familiar heads of fraud, accident, mistake, and failure of consideration. The same liberality as to evidence was not favored under the plea of non assumpsit. It was said by Chief Justice Tilghman that if the circumstances afforded grounds for relief in equity, the defendant should give notice of special matter under the plea of payment.

In the action of covenant, the plea of performance, or covenants performed, almost obsolete in England, was,

1 Rule of Supreme Court of Pennsylvania, April 10, 1775, Docket No. 7, page 291. Section 7 of the procedure act of May 25, 1887, P. L. 271, provides: "The pleadings in all courts to be subject to the rules of the respective courts as to notice of special matter."

2 Lewis v. Morgan, 11 Sergeant & Rawle's Reports, 234 (1823). Compare Hollingsworth v. Ogle, 1 Dallas's Reports, 257 (1788). 3 Pepper and Lewis's Digest of Decisions, Vol. 16, col. 27376. Dunlap v. Miles, 4 Yeates's Reports, 366 (1807).

with notice of special matter held sufficient to support any evidence which would discharge the defendant in equity. In ejectment an equitable defense would protect the defendant's possession, but by statute2 the plea of "not guilty" was the only one allowed. There was also permitted, in addition to the statutory set-off, an equitable defense in the nature of set-off applicable to acts of nonfeasance or misfeasance by the plaintiff connected with his cause of action, not matter of defalIcation but directed to the defeat of the claim in whole or part. As to replications and subsequent pleadings, if a plea was put in founded in equity the plaintiff was permitted in reply to set up any special facts sufficient to destroy that equity.3

Another powerful instrument in the administration of equity under common law forms was the conditional verdict frequently used as a substitute for an injunction or a bill for specific performance. In such a case, where the plaintiff had set out in his declaration the whole ground of his equitable right, the jury under the direction of the court might find large damages to be released on condition of compliance with the terms prescribed by the verdict, which terms were for the jury alone to impose. So also the power of the court to control or open judgments has been exercised according to equitable principles and with a view to preventing injustice under color of law.

Such then is the system which Horace Binney contemptuously described as "a spurious equity compounded

1 Bender v. Fromberger, 4 Dallas's Reports, 436 (1806).

2 Act of April 13, 1807, 4 Smith's Laws of Pennsylvania, 476. 3 McCutchen v. Nigh, 10 Sergeant & Rawle's Reports, 344 (1823).

4 Clyde v. Clyde, 1 Yeates's Reports, 92 (1791); Decamp v. Feay, 5 Sergeant & Rawle's Reports, 323; Moyer v. Germantown Railroad Co., 3 Watts & Sergeant's Reports, 91 (1841).

of the temper of the judge and the feelings of the jury, with nothing but a strong infusion of integrity to prevent it from becoming as much the bane of personal security as it was the bane of science." The early bar, however,

regarded it much as a mother does a deformed child; they loved it, they doctored it and resented reflections upon its symmetry and efficiency.2 Extravagant notions were at one time entertained as to the possibility of extending the system by the employment of long forgotten actions, such as the assize of nuisance, and by widening the scope of the writ of scire facias. As has been shown, more sensible counsel prevailed and limited chancery powers were extended to the courts by statute.

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If the court of chancery had been excluded in the eighteenth century from our system of justice as the first step in a movement for the scientific reform of procedure, the result might have been far-reaching. But it was not. Political considerations dictated the change. and the best legal opinion of the day was adverse to the innovation. Anglo-American jurisprudence was founded on the inherited conception of a dual system, law and equity, each with its distinct functions. The excision. of equity crippled and paralysed the administration of justice. Having destroyed chancery forms, the next logical step should have been to abolish all distinctions between common law forms and substitute one simple

1 Eulogy on Chief Justice Tilghman, 16 Sergeant & Rawle's Reports, 448; Gochenauer v. Cooker, 8 Sergeant & Rawle's Reports, 187 (1822), Gibson, J., at page 192.

2 Opinion of Chief Justice Black in Finley v. Aitken, 1 Grant's Reports (Pa.), 83 (1854), at page 95.

3 Livezey v. Gorgas, 2 Binney's Reports, 192 (1809). The record of the trial will be found in Brackenridge's Law Miscellanies, 438. See also Barnet v. Ihrie, 17 Sergeant & Rawle's Reports, 174 (1828).

4 Laussat's Equity in Pennsylvania, 136.

method of proceeding, under which equity and law alike could be administered. But such a conception was in advance of the times. Instead, from time to time under the pressure of necessity, efforts were made to administer equitable principles through forms that even for their own legitimate purposes were fast becoming archaic. The result was to create a new series of technicalities requiring a glossary of their own. When chancery powers were conferred upon the courts, the fact that relief was given in common law forms might have presented an obstacle to the exercise of equity jurisdiction in many instances, had not the courts, by a liberal construction of the acts conferring such jurisdiction, insisted that it was not sufficient to oust the jurisdiction of equity that complainant had a remedy at law, unless that remedy was as complete, adequate, practical, efficient and convenient to the ends of justice as that in equity. Nevertheless there are cases where the distinction is still far from clear, a situation that would be ridiculous were it not so serious to prospective litigants.

Another disadvantage that attended the system was that the equities of the respective parties were to a large extent left to the chance decision of a jury, which is more likely to be guided by sympathy or prejudice than the law of the case, or, with the best intentions in the world, is an unsatisfactory tribunal for the determination of complicated questions of fact. No doubt this is one reason for the great number of references to arbitrators to be found on the early dockets.

It is true that for purely defensive purposes the system had decided advantages. It permitted a defendant to put in an equitable defense without resorting to another jurisdiction for relief. But on the offensive it broke down. The common law offered no adequate substitute for the bill for an injunction, to enforce

specific performance of contracts, to reform or cancel instruments, to obtain a receiver, for the bill quia timet and the bill of peace. Present social and commercial conditions tend to increase rather than diminish the importance of equity jurisdiction. Such matters as trade-marks, copyrights and patents; corporations, associations and trusts; trade disputes and interstate commerce, present problems that would seem almost incapable of solution except through chancery procedure, either in its original form or as assimilated by code practice, without a revolutionary reconstruction of the entire legal system.

Some reformation of our procedure belongs to the future. Of that we may be certain. It is impossible to imagine that our technical and complicated practice will not fall some day of its own weight and be replaced by a procedure clearer, simpler and more scientific. In that golden age, when the practice of law will be a pleasant diversion and the bringing of a suit the opening bar of a symphony, if one of our learned profession now living is permitted, as a shade, to revisit the scene of his earthly struggles, he will be able, perhaps, to recognize traces of equity procedure, but the common law actions will belong as completely to the past as himself, or, to put it more humanely, as the actio sacramenti of the Roman or the weregeld of the Saxon.