For these reasons, which are based chiefly upon notions of convenience, a demurrer does not seem to be an appropriate remedy until the causes of action have been separated, and it is known with certainty what and how many they are. In this case, therefore, the more convenient practice would seem to be a motion in the first instance to make the pleading more certain and definite by arranging it into distinct causes of action, or a motion to strike out the redundant matter and surplusage and thus reduce it to a single definite cause of action. The latter order would take the place of a demurrer; the former would be followed by a demurrer after the causes of action had been separated.

III. Meaning of the term "Cause of Action;" Where one Cause of Action only is stated, although several different kinds of relief are demanded.

§ 452. The cause of action is very often confounded with the remedy. This mistake or misconception is peculiarly apt to occur in cases where, under the code, the plaintiff seeks to obtain legal and equitable relief combined, the right to such reliefs springing from the same state of facts. To avoid this tendency to confusion, it is absolutely necessary to ascertain and fix with certainty the true meaning of the term "cause of action." The American courts of the present day seem to avoid the announcement of any general principle, or the giving of any general definitions. While, therefore, they have repeatedly held that but one cause of action was stated in a case before them, and have carefully distinguished it in that instance from the reliefs demanded, they have not attempted to define the term 66 cause of action in any general and abstract manner, so that this definition might be used as a test in all other cases. We shall obtain no direct help, therefore, from their decisions; but they will furnish examples and tests to determine whether any definition which may be framed is accurate. I shall, however, attempt a definition or description, basing it upon an analysis of the essential elements which enter into every judicial proceeding for the protection of a private right on the one side, and the enforcement of a private duty on the other. There are such elements or features which necessarily combine in every action;

they are independent of any judicial recognition; they exist in the very nature of things; and, if we can by an accurate analysis discover these elements, we shall at once have obtained a correct notion of the term "cause of action."

§ 453. Every action is brought in order to obtain some particular result which we term the remedy, which the code calls the relief," and which, when granted, is summed up or embodied in the judgment of the court. This result is not the "cause of action" as that term is used in the codes. It is true, this final result, or rather the desire of obtaining it, is the primary motive which acts upon the will of the plaintiff and impels him to commence the proceeding, and in the metaphysical sense it can properly be called the cause of this action, but it is certainly not so in the legal sense of the phrase. This final result is the "object of the action" as that term is frequently used in the codes and in modern legal terminology. It was shown in the opening paragraphs of the introductory chapter that every remedial right arises out of an antecedent primary right and corresponding duty and a delict or breach of such primary right and duty by the person on whom the duty rests. Every judicial action must therefore involve the following elements: a primary right possessed by the plaintiff, and a corresponding primary duty devolving upon the defendant; a delict or wrong done by the defendant which consisted in a breach of such primary right and duty; a remedial right in favor of the plaintiff, and a remedial duty resting on the defendant springing from this delict, and finally the remedy or relief itself. Every action, however complicated, or however simple, must contain these essential elements. Of these elements, the primary right and duty and the delict or wrong combined constitute the cause of action in the legal sense of the term, and as it is used in the codes of the several States. They are the legal cause or foundation whence the right of action springs, this right of action being identical with the "remedial right" as designated in my analysis. In accordance with the principles of pleading adopted in the new American system, the existence of a legal right in an abstract form is never alleged by the plaintiff; but, instead thereof, the facts from which that right arises are set forth, and the right itself is inferred therefrom. The cause of action, as it appears in the complaint when properly pleaded, will therefore always be

the facts from which the plaintiff's primary right and the defendant's corresponding primary duty have arisen, together with the facts which constitute the defendant's delict or act of wrong.

§ 454. The cause of action thus defined is plainly different from the remedial right, and from the remedy or relief itself. The remedial right is the consequence, the secondary right which springs into being from the breach of the plaintiff's primary right by the defendant's wrong, while the remedy is the consummation or satisfaction of this remedial right. From one cause of action, that is, from one primary right and one delict being a breach thereof, it is possible, and not at all uncommon, that two or more remedial rights may arise, and therefore two or more different kinds of relief answering to these separate remedial rights. This is especially so when one remedial right and corresponding relief are legal, and the other equitable; but it is not confined to such cases. One or two very familiar examples will sufficiently illustrate this statement, and will show the necessity as well as the ease of discriminating between the "cause of action" and the remedy. Let the facts which constitute the plaintiff's primary right be a contract duly entered into by which the defendant agreed to convey to the plaintiff a parcel of land, and full payment by the plaintiff of the stipulated price and performance of all other stipulations on his part. Let the delict be a refusal by the defendant to perform on his part. This is the cause of action, and it is plainly single. From it there arise two remedial rights and two corresponding kinds of relief; namely, the remedial right to a compensation in damages, with the relief of actual pecuniary damages; and the remedial right to an actual performance of the agreement, and the relief of an execution and delivery of the deed of conveyance. If the plaintiff in one action should state the foregoing facts constituting his cause of action, and should demand judgment in the alternative either for damages or for a specific performance, he would, as the analysis above given conclusively shows, have alleged but one cause of action, although the reliefs prayed for would be distinct, and would have belonged under the old system to different forums, — the common law and the equity courts. Again: let the plaintiff's primary right be the ownership and right to possession of a certain tract of land, and let the facts from which it arises be properly alleged; let the delict consist in the defendant's wrong

ful taking and retaining possession and user of such land for a specified period of time, and let the facts showing this wrong be properly averred in the same pleading. Evidently the plaintiff will have stated one single and very simple cause of action. The remedial rights arising therefrom, and the remedies themselves corresponding thereto, will be threefold, and all of them legal: namely, (1) the right to be restored to possession, with the actual relief of restored possession; (2) the right to obtain compensation in damages for the wrongful withholding of the land, with the relief of actual pecuniary damages; and (3) the right to recover the rents and profits received by the defendant during the period of his possession, with the relief of an actual pecuniary sum in satisfaction therefor. Here, also, the single nature of the one cause of action plainly appears, and its evident distinction from the various remedial rights and actual remedies which do or may arise from it.1

§ 455. The result of this analysis of the necessary elements which enter into every action is simple, easily to be understood, and yet exceedingly important; and the principle I have thus deduced will serve as an unerring test in determining whether different causes of action have been joined in a pleading, or whether one alone has been stated. If the facts alleged show one primary right of the plaintiff, and one wrong done by the defendant which involves that right, the plaintiff has stated but a single cause of action, no matter how many forms and kinds of relief he may claim that he is entitled to, and may ask to recover; the relief is no part of the cause of action. In applying this test, however, it must be observed that the single primary right, and the single wrong, which, taken together, constitute the one cause of action, may each be very complicated. For example, the primary right of ownership includes not only the particular subordinate rights to use the thing owned in any manner permitted by the law, but also similar rights to the forbearance on the part of all mankind to molest the proprietor in such use. The facts which constitute the delict complained of may embrace not only the wrongful obtaining, and keeping possession, in such a case as the one last The fact that the codes generally or remedies based upon the same facts seem to treat these different claims for which constitute a single cause of action. relief as distinct causes of action does not See Larned v. Hudson, 57 N. Y. 151, affect the correctness of my analysis; they which is based entirely upon the language are plainly no more than separate reliefs of the statute.

supposed, but also the procuring and holding deeds of conveyance, or other muniments of title, by which such possession is made possible, and to appear rightful. These suggestions are necessary to guard against the mistake of supposing that a distinct cause of action will arise from each special subordinate right included in the general primary right held by the plaintiff, or from each particular act of wrong, which, in connection with others, may make up the composite but single delict complained of.

§ 456. On the other hand, if the facts alleged in the pleading show that the plaintiff is possessed of two or more distinct and separate primary rights, each of which has been invaded, or that the defendant has committed two or more distinct and separate wrongs, it follows inevitably, from the foregoing principle, that the plaintiff has united two or more causes of action, although the remedial rights arising from each, and the corresponding reliefs, may be exactly of the same kind and nature. If two separate and distinct primary rights could be invaded by one and the same wrong, or if the single primary right should be invaded by two distinct and separate legal wrongs, in either case two causes of action would result; a fortiori must this be so when the two primary rights are each broken by a separate and distinct wrong.

§ 457. The general principle which I have thus drawn from an analysis of the essential elements which make up a judicial action can be applied to all possible cases, and will furnish a sure and simple test by which to determine whether one or more causes of action have been embodied in any complaint or petition. The demand for relief must be entirely disregarded; whether single or complex, it forms no part of, and has no effect upon, the "cause of action." Rejecting, therefore, all those portions of the pleading which describe the remedy or relief demanded, the inquiry should be directed exclusively to the allegations of fact which set forth the primary right of the plaintiff and the wrong done by the defendant. If one such right alone, however comprehensive, is asserted, and if one such wrong alone, however complex, is complained of, but one cause of action is alleged. If the examination discloses more than one distinct and independent primary right held by the plaintiff, and all of them invaded by the defendant, or more than one distinct and independent wrong done by the defendant to the plaintiff's primary right or rights,