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right which they create, must be used for the pursuit of all remedies, legal or equitable. The authorities referred to in the notes show that this doctrine is now adopted in all the States where the reformed procedure prevails, and that there is little variation in the language by which it is expressed. When, however, we shall pass from this statement of the doctrine in the abstract to the application of it in particular instances, as, for example, in questions as to parties, pleading, judgments, perfect uniformity of judicial opinion and action disappears; but still in the great majority of the States the courts have fairly followed the true intent of the legislation and the correct principle of interpretation.

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§ 71. Thus it may be regarded as a settled rule, resulting from the statutory provision in question, that if a plaintiff has set forth facts constituting a cause of action, and entitling him to some relief, either legal or equitable, his action shall not be dismissed because he has misconceived the nature of his remedial right, and has asked for a legal remedy when it should have been equitable, or for an equitable remedy when it should have been legal. Nothing was a more familiar rule in the old system

note.

1 See cases cited in last preceding after stating the old rule by which the action would have been properly dismissed, proceeds (p. 64): “In determining whether an action will lie, the courts are to have no regard to the old distinctions between legal and equitable remedies. Those distinctions are expressly abolished. A suit does not, as formerly, fail because the plaintiff has made a mistake as to the form of the remedy. If the case which he states entitles him to any remedy, either legal or equitable, his complaint is not to be dismissed because he has prayed for a judgment to which he is not entitled." Bidwell v. Astor Ins. Co., 16 N. Y. 263, was an action on a policy of insurance. The complaint asked that the policy be reformed, and that the defendant pay $7,000 as the sum insured by the reformed policy. Without a reformation the plaintiff was not entitled to a judgment for any amount. On the trial a mistake in the instrument was proved, and the court directed a judgment for $7,000. The defendant insisted that a judgment for damages, instead of one for a reformation, was improper. The court

2 Crary v. Goodman, 12 N. Y. 266, 268; N. Y. Cent. Ins. Co. v. National Protec. Ins. Co., 14 N. Y. 85, 90; Emery v. Pease, 20 N. Y. 62, 64; Bidwell v. Astor Ins. Co., 16 N. Y. 263, 267; Phillips v. Gorham, 17 N. Y. 270, 273, 275; Laub v. Buckmiller, 17 N. Y. 620, 626; N. Y. Ice Co. v. N. W. Ins. Co., 23 N. Y. 357, 359; Barlow v. Scott, 24 N. Y. 40, 45; Marquat v. Marquat, 12 N. Y. 336; Troost v. Davis, 31 Ind. 34, 39; Grain v. Aldrich, 38 Cal. 514, 520; Leonard v. Rogan, 20 Wisc. 540, 542. And see the various quotations in note to § 70, ante. In addition to several of the quotations last referred to, the following extracts will illustrate the statement of the text: In Emery v. Pease, 20 N. Y. 62, the complaint set out facts entitling the plaintiff to an accounting, but did not ask one; it did not aver any settlement, nor ascer tained balance due, and demanded judgment for a sum certain. On the trial the complaint was dismissed, on the ground that it did not set forth facts sufficient to constitute a cause of action. Comstock J.,

than the one which turned a plaintiff out of court if he had misconceived the nature or form of his action. If he brought an action at law, and on the trial proved a case for equitable relief, or if he filed a bill in equity, and at the hearing showed himself entitled to a judgment at law, he must absolutely fail in that proceeding. It is very plain that this arbitrary and most unjust rule rested wholly upon the ancient notions as to distinctions. between legal and equitable actions, and did not rest upon any notions as to the primary rights which the litigant parties sought to maintain. Wherever, therefore, the letter and spirit of the reformed system are followed by the courts, this harsh rule is swept away. A suit does not now fail because the plaintiff has erred as to the form or kind or extent of the remedy he demands. A party cannot be sent out of court merely because the facts alleged do not entitle him to relief at law, or merely because they do not entitle him to relief in equity. If the case which he states shows him entitled to any relief, either legal or equitable, his complaint is not to be dismissed because he has prayed for a judgment that is not embraced by the facts. The only inconvenience which a plaintiff can suffer from such an error is, that the trial may, perhaps, be suspended, and the cause sent

say: “There was nothing in the objection that the court should have stopped with reforming the policy, and turned the plaintiff over to a new action to recover damages." The N. Y. Ice Co. v. N. W. Ins. Co., 23 N. Y. 357, is an important and suggestive case. The action was on an insurance policy. The plaintiff claimed a money judgment for a loss, and also a reformation of the policy which, if made, would entitle him to a further recovery of money. He failed to make out a case for a reformation; whereupon the trial court dismissed the action, holding that the other issue could not be tried. Comstock J., said (p. 359): "I am of opinion that it was erroneous to turn the plaintiff out of court on the mere ground that he had not entitled himself to the equitable relief granted, if there was enough left of his case to entitle him to recover the sum in which he was insured. No suggestion was made that the complaint did not show a good cause of action for this money, even after striking out all the allegations and the prayer

on the subject of the equitable relief." The same doctrine is again applied in Barlow v. Scott, 24 N. Y. 40, 45, Lott J., saying: "Under our present arrangement, the same court has both legal and equitable jurisdiction; and if the facts stated by a party in his complaint are sufficient to entitle him to any of the relief asked, and an answer is put in putting these facts in issue, it would be erroneous to dismiss the complaint on the trial merely because improper relief is primarily demanded." The true principle was tersely and most accurately stated by Sanderson J., in Grain v. Aldrich, 38 Cal. 514, 520: "Legal and equitable relief are administered in the same forum and according to the same general plan. A party cannot be sent out of court merely because his facts do not entitle him to relief at law, or merely because he is not entitled to relief in equity, as the case may be. He can be sent out of court only when upon his facts he is entitled to no relief either at law or in equity."

to another branch of the court, or, as in Kentucky, Iowa, and Oregon, to another docket.1 If a plaintiff had brought his action on the theory that it was based upon an equitable right, and sought an equitable relief, and it turns out to be in effect legal, so that the defendant is entitled to a jury trial, the trial must be had before a jury, and not before a single judge sitting as a chancellor; and, when the trial had taken place before the wrong tribunal, the judgment would be reversed, and the cause sent for a new trial in the proper place.2

§ 72. The rule discussed in the foregoing paragraph as to the relation between the facts alleged and the relief asked and granted was not established without a struggle, and has not at all times, and in all the States, prevailed without exception, and perhaps is not even now universally accepted. Many early cases in New York were decided under the influence of the former practice and the ancient notions; and, although the Court of Appeals has completely repudiated the doctrine of those adjudications, yet the principles announced by it have not always been followed by the inferior tribunals of the same State. In one or two of the States, and especially in Missouri, the ancient rules and doctrines in reference to this subject-matter have been repeatedly asserted, and, until a very recent period, prevailed in the courts, notwithstanding the adoption of the reformed procedIn Missouri, the judiciary, standing alone in this respect, preserved for a long time the real distinctions between legal and equitable actions as strongly marked as under the former system, and, in fact, insisted upon a rule more strict than that enforced by the English Court of Chancery. The following examples will illustrate this peculiar interpretation of their code by the Missouri courts. In those cases where the plaintiff holds the equitable title to land, while the legal title is in the defendant by

ure.

1 McCrory v. Parks, 18 Ohio St. 1; Ellithorpe v. Buck, 17 Ohio St. 72. See Dickson v. Cole, 34 Wisc. 621, 625.

2 Davis v. Morris, 36 N. Y. 569, 571, 572, per Grover J. In this case the New York Court of Appeals laid down, in a formal manner, the rule as to the trial of legal and equitable issues. If the plead ings present both legal and equitable issues, the parties are entitled to a jury, and all the issues must be tried together; that is, there should not be a partial

trial before a jury and the residue before another tribunal. If, however, the plaintiff insists upon a trial before the court, and his claim is acceded to, upon the discovery that the action presents issues which must be decided by a jury, the complaint should not be dismissed, but the cause should be sent to the circuit for trial as a jury cause; Parker v. Laney, 58 N. Y. 469; Richmond v. Dubuque, &c. R. R., 33 Iowa, 422, 489-491.

8 See Peck v. Newton, 46 Barb. 173, 174.

means of a fraudulent conveyance, it has been frequently held that the former must first obtain a decree in equity, cancelling the outstanding deed, and must then resort to a separate action of ejectment to recover possession of the land. A vendee of land has also been required to proceed in two distinct actions, the first equitable, to compel a specific performance, and the second legal, to obtain possession. The plaintiff was turned over to a second legal action in order to complete his remedy, because, as the court repeatedly insisted, possession of land can never be awarded by a decree in equity.1 The Missouri court has recently receded, in part at least, from this extreme position, and is plainly tending towards a complete harmony with the doctrines which are accepted in other States. A simple criterion has been suggested by which to determine the nature of the action. If the facts alleged in the complaint or petition would entitle the plaintiff to both legal and equitable relief, the prayer for judgment - that is, the nature of the remedy demanded- might be a certain test by which the character of the suit should be known.3 This suggestion has not, however, been followed in other cases.

§ 73. To recapitulate the results of the foregoing discussion: The courts have, with few exceptions, accepted the language of the code in its simplicity, and have given to it a reasonable meaning; they have acknowledged that the legislature intended to abolish, and has abolished, all the features which distinguish legal and equitable actions from each other, and has established a single action for the pursuit of all remedies; they have settled the doctrine that by the use of this single action neither the primary rights nor the remedial rights of litigant parties are affected or in any manner modified, since they do not depend upon matters connected with the form or external features of the action, and that among the matters which are thus connected with the form are the setting forth or statement of the cause of action or defence in the pleadings, and the demand of relief or prayer for judgment. A mistake or misconception in

1 Meyers v. Field, 37 Mo. 434, 441; Maguire v. Vice, 20 Mo. 429; Curd v. Lackland, 43 Mo. 139; Wynn v. Corry, 43 Mo. 301; Gray v. Payne, 43 Mo. 203; Bobbr. Woodward, 42 Mo. 482, 487; Peyton v. Rose, 41 Mo. 257, 262; Gott v. Powell, 41 Mo. 416; Moreau v. Detchemendy, 41 Mo. 431; Walker's Admr. v.

Walker, 25 Mo. 367; Reed v. Robertson, 45 Mo. 580; Rutherford v. Williams, 42 Mo. 18, 23; Fithian v. Monks, 43 Mo. 502, 517; Magwire v. Tyler, 47 Mo. 115, 127. 2 Henderson v. Dickey, 50 Mo. 161, 165, per Wagner J.

8 Gillett v. Treganza, 13 Wisc. 472, 475, per Dixon C. J.

respect to the action being called legal or equitable, does not defeat the plaintiff, but at most may require a trial before a properly constituted court. One fundamental principle controls the administration of justice by means of this common civil action, and this principle may be formulated in the following manner: The object of every action is to obtain a judgment of the court sustaining or protecting some primary right or enforcing some primary duty; every such primary right and duty results from the operation of the law upon certain facts, in the experience of the person holding the right or subjected to the duty; every wrong or violation of this primary right or duty consists in certain facts, either acts or omissions of the person committing the wrong. A statement, therefore, of the facts from which the primary right or duty arises, and also of the facts which constitute the wrong or violation of such primary right or duty, shows, and must of necessity show, at once a complete cause of action; that is, the court before which this statement is made can perceive from it the entire cause of action, the remedial right flowing therefrom, and the remedy or remedies which should be awarded to the injured party. All actions can be and should be constructed in the manner thus described; and if so they would conform to the single and common principle announced by the reformed method of procedure. Whether the rights and duties are legal or equitable, whether the remedies appropriate are legal or equitable, whether the facts are simple and few or complex and numerous, does not in the slightest degree affect the application and universality of this principle; it is the central conception of the new system, the corner-stone upon which the whole structure is erected.

§ 74. It is not my purpose in the present section to follow this general principle in its application to the various features and phases of an action; to do so would be to anticipate the matter contained in several subsequent chapters. A brief allusion must be made, however, to one of these topics, or else the theory of construction finally accepted by the courts will be but partially explained, I refer to the subject of pleading. No single element of difference more sharply marked the contrast between the action at law and the suit in equity under the former system than the manner in which the litigant parties in each stated their causes of action and their defences. Although it

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