class, without the details of evidence or probative matter relied upon to establish either, is a necessary consequence of the single comprehensive principle which underlies the whole reformed system.

§ 529. The third and last point remains to be considered in this general discussion. The issuable facts in a legal action, and the facts material to the relief in an equitable suit, should not only be stated to the complete exclusion of the law and the evidence, but they should be alleged as they actually existed or occurred, and not their legal effect, force, or operation. This conclusion follows as an evident corollary from the doctrine that the rules of law and the legal rights and duties of the parties are to be assumed, while the facts only which call these rules into operation, and are the occasion of the rights and duties, are to be spread upon the record. Every attempt to combine fact and law, to give the facts a legal coloring and aspect, to present them in their legal bearing upon the issues rather than in their actual naked simplicity, is so far forth an averment of law instead of fact, and is a direct violation of the principle upon which the codes have constructed their system of pleading. The peculiar method which prevailed at the common law has been fully described; it was undoubtedly followed more strictly and completely in certain forms of action than in others; in a few instancesas in a special action on the case the declaration was framed in substantial conformity with the reformed theory. But in very many actions, and those in constant use, the averments were almost entirely of legal conclusions rather than of actual facts. The familiar allegations that the plaintiff had "bargained and sold," or "sold and delivered," that the defendant" was indebted to the plaintiff," or "had and received money to the plaintiff's use," and very frequently even the averment of a promise made by the defendant, may be taken as familiar illustrations from among a great number of other similar phrases which were found in the ordinary declarations. Rejecting as it does the technicalities, the fictions, the prescribed formulas, and the absurd repetitions and redundancies, of the ancient common-law system, the new pleading radically differs from the old in no feature more important and essential than this, that the allegations must be of dry, naked, actual facts, while the rules of law applicable thereto, and the legal rights and duties arising therefrom, must be left

entirely to the courts. While this doctrine has been uniformly recognized as correct when thus stated in an abstract and general manner, it has sometimes been overlooked or disregarded in passing upon the sufficiency and regularity of particular pleadings. Whether those decisions which have permitted the common counts to be used as good complaints or petitions, and those which have required the promise implied by law to be expressly averred as though actually made, are in conformity with this doctrine, will be considered in subsequent paragraphs, and the various cases bearing upon the question will be cited and discussed. It is sufficient for my present purpose to state the doctrine in its general form, and to reserve its application for another portion of the chapter.

§ 530. As the foregoing analysis has been exclusively based upon the text of the codes, I shall now test the correctness of its conclusions, and illustrate the extent and application of its general doctrines, by a reference to the decided cases, following in the arrangement of the subject-matter the order already adopted. The rule that facts alone are to be stated, to the exclusion of law and of the legal rights and duties of the parties, has been uniformly accepted by the courts, and has been enforced in every variety of issues and of special circumstances. In a very recent decision, this general doctrine was expressed in the following language; "Matter of law is never matter to be alleged in pleading. No issue can be framed upon an allegation as to the law. Facts only are pleadable, and upon them without allegation the courts pronounce and apply the law. This is true alike in respect to statutes and to the common law."1 Among the allegations which have been condemned as legal conclusions, and for that reason as forming no material issue, and which have been rejected as failing to state any element of a cause of action, the following are given as illustrations: In an action to dissolve a partnership, for an accounting, &c., the averment that on a

1 People v. Commissioners, &c., 54 N. Y. 276, 279. The question was as to the validity of a certain statute. The defendants, in their pleading, had ad-. mitted its validity, and that they were required by it to do the acts sought to be enforced by the action, and had nowhere raised any objection on the record. The adverse party claimed that this admission

precluded the defendants from raising the question at the argument. Johnson J. said: "The objection to its [this question] being raised is that the defendants have, in pleading, admitted the obligation of the law," and theh adds the language quoted in the text. See also Commonwealth v. Cook, 8 Bush, 220, 224; Clark v. Lineberger, 44 Ind. 223, 228, 229.

day named, and for a long time previous thereto, the defendant and the plaintiffs "were partners doing business under the firm name of T. & C.; "1 in an action to restrain the removal of a county seat under a statute which was claimed to be special and therefore void, the allegation that "said act is a special law in a case where a general law of uniform operation throughout the State exists, and can be made applicable; "2 in an action apparently to recover damages for the wrongful interference with the plaintiff's possession of certain land, the averment that the plaintiff "was entitled to the exclusive possession of" the premises in question;3 in an action against a subscriber to the stock of a corporation to be organized, brought to recover the amount of his subscription, an averment that the "company was legally organized, into which organization the defendant entered." +

§ 531. Also, in an action to recover on a policy of fire insurance, by the terms of which the sum assured did not become payable until certain acts had been done by the plaintiff as conditions precedent, an averment merely "that the whole of said sum is now due; "5 in an action to restrain the collection of a tax on the plaintiff's land, an allegation that the land" is by the laws of the State exempt from taxation; "6 in a suit to recover a stock

1 Groves v. Tallman, 8 Nev. 178. A general demurrer to the complaint was sustained, the court holding that this alle gation was a mere conclusion of law, and that the executed agreement of partnership should have been set forth. The decision, as it seems to me, is entirely wrong the plaintiff had stated the is suable fact, while the court demanded the evidence there may have been no written contract of partnership.

2 Evans v. Job, 8 Nev. 322, the court further holding, that, when the complaint alleges a mere conclusion of law, no answer to such allegation is necessary.

3 Garner v. McCullough, 48 Mo. 318. The petition did not state that the plaintiff was or had ever been in possession, and failed to disclose the nature of his claim or the source of his right, the allegation quoted being the sole assertion of a right in the land. It was held that no cause of action was stated, and all evidence should be excluded at the trial, although the defendant had answered.

4 Hain v. North West. Gravel R. Co., 41 Ind. 196. This averment was held to have raised no issue, citing Indianapolis, &c. R. R. v. Robinson, 35 Ind. 380.

5 Doyle v. Phoenix Ins. Co., 44 Cal. 264, 268. The court having decided that the complaint did not sufficiently aver a performance of the conditions precedent by the plaintiff, and so failed to state a cause of action, added: “The allegation that the sum is now due' may be laid out of the case, inasmuch as that is a conclusion of law merely."

6 Quinney Stockbridge, 33 Wisc. 505. There was no other statement showing that the land was exempt; and, in order that it should be so, certain special circumstances must have existed. The averment was held to be of no force whatever, unless accompanied by allegations of the proper facts; and a preliminary injunction was therefore dissolved upon the complaint alone.

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subscription to a corporation, an allegation that the party became a subscriber to the capital stock "by signing and delivering" a specified agreement; 1 an allegation "that the title of the plaintiff to said lots by virtue of said tax sale is invalid, from an irregularity in the notice of such tax sale; "2 in an action to set aside a judgment for a tax, an allegation "that no notice was given of the said proceedings, or any of them," which resulted in the tax ; 3 in an action brought to recover land claimed by inheritance from a former owner, the allegation that the plaintiff was "one of the heirs of" such former owner; in an action on a contract where the defendant's liability depended upon the performance of certain conditions precedent by a third person, the mere allegation, without stating any performance by such person, that "the defendant neglected and refused" to perform the stipulated act on his part "according to the terms of said agreement."5 The law of another state or country, however, is regarded, for purposes of pleading, as matter of fact, and must be averred with so much distinctness and particularity that the court may, from the statement alone, judge of its operation and effect upon the issues presented in the cause. Thus, in an action upon a note executed and made payable in Illinois, the allegation," that by the law of Illinois the defendant was indebted to the plaintiff in the amount of such note," was held insufficient to admit evidence of what the Illinois law is in reference to the subject-matter. In Indiana the averment, that the defendant "is indebted " to the plaintiff in a specified amount, is held to be sufficient. This ruling, however, is not based upon the general principles of pleading announced

1 Wheeler v. Floral Mill Co., 9 Nev. 254, 258. In an action against the company, it set up the demand mentioned in the text as a set-off or counter-claim, alleging the plaintiff's liability in the manner described. A judgment in favor of the defendant was reversed, because there was no averment in the answer which made out a cause of action, citing Barron v. Frink, 30 Cal. 486; Burnett v. Stearns, 33 Cal. 473.

son, 4 J. J. Marsh. 649; Currie v. Fowler, 5 J. J. Marsh. 145.

5 Wilson v. Clark, 20 Minn. 867, 369. This was declared to be a mere conclusion of law; and as no facts were stated from which it could be inferred, it was a nullity.

6 Roots v. Merriwether, 8 Bush, 397, 401. As a foreign law is a matter of fact, the court does not take judicial notice of it, and if different from that of the forum,

2 Webb v. Bidwell, 15 Minn. 479, and if it must be invoked in order to 485.

3 Stokes v. Geddes, 46 Cal. 17.

4 Larue v. Hays, 7 Bush, 50, 53. This allegation was held not to be admitted by a failure to deny it, citing Banks v. John

make out the cause of action, the particular doctrine or rule relied upon must be fully and accurately stated in the pleading. See Woolsey v. Williams, 34 Iowa, 413, 415.

by the codes, but upon certain short forms authorized by the legislature, which were copied from the ancient common counts in assumpsit.1 Examples similar to the foregoing might be indefinitely multiplied; but these are sufficient to illustrate the action of the courts, and to show how firmly they have adhered to the doctrine that facts, and not law, must be alleged, and that the averments of legal conclusions without the facts from which they have arisen form no issues, state no causes of action, admit no evidence, and do not even support a verdict or judgment, - in short, that they are mere nullities.

§ 532. Pursuing the order before indicated, the following cases will explain and illustrate the second doctrine that the principal, material, and issuable facts must be pleaded, and not the details of evidentiary or probative matter from which the existence of the final facts is inferred. The language employed by the court in an action brought to restrain the execution of tax deeds of the plaintiff's land, on account of illegality in the proceedings, furnishes a very instructive example of such averments: "The plaintiff relied upon the absence of preliminary proceedings essential to the validity of the tax sales. But instead of averring, either of his own knowledge or upon information and belief, that such proceedings were not had, he only averred that he had searched in the proper offices for the evidence that they were had, and failed to find it. The only issue that could be made upon such an allegation would be whether he had searched and found the evidence or not, which would be entirely immaterial." 2 In pleading certain classes of issues, it is undoubtedly difficult sometimes to discriminate between the final facts and the probative matter. This is especially true in charging fraud, which

1 Johnson v. Kilgore, 39 Ind. 147. These statutory forms, in my opinion, violate the fundamental principles of pleading adopted by the reformed procedure, more so even than the ancient common counts. This question will be particularly examined in a subsequent paragraph.

2 Rogers v. Milwaukee, 13 Wisc. 610, 611. If the plaintiff had alleged that the proceedings in question had been omitted, the facts stated by him would have been proper evidence in support of the averment. This case exhibits very clearly

the distinction between the ultimate issuable fact which cannot be changed in order to make out a given cause of action, and the probative matter by which such fact is established, and which may vary according to the exigencies of the case. Of course the omission of the preliminary proceedings must be proved, but it could be proved by many different kinds of evidence. This distinction is a certain test by which to determine whether any given fact is issuable and material, or is only probative.