removed, a way was opened for redressing the primary equitable right in a manner exactly conforming with its own nature and extent; that is, a primary equitable right or interest calling for possession can be redressed by granting possession. In other words, the ancient rule denying to an equitable owner the remedy of bare possession in the cases described was one of the "distinctions" and "forms" in express terms abolished by the legislature in enacting the new procedure. Courts which continue the denial because "ejectment could not be brought by a holder of an equitable title," or because "the legal title must prevail," overlook the real nature both of the right to be redressed and of the remedy to be conferred, and pay a regard only to the technical notions of form which hampered the common-law courts in all their movements, and which became at last so grievous a restraint upon the administration of justice that the legislature was compelled to intervene. In the other case, however, the reasons of the rule were very different, and were founded upon the nature of the primary right itself, and not upon any formal incidents of the judicial proceeding by which it was redressed. A partner is not suffered to maintain the action in question because his primary right, flowing from the fact of partnership, is not of such a nature as to call for a remedy of that kind; that is, a judgment for the payment of a certain sum. The right to the recovery of a certain sum of money, unless arising from tort, must, according to the common-law, be based upon a promise express or implied. It does not affect this principle to say that the common-law doctrine of implied promises was itself largely founded upon a fiction. Granting this to be true, as it undoubtedly was, still the theory was firmly established that the liability spoken of arose either from an express promise or from acts,` events, or relations which created a duty to pay, and which duty the law conceived of as springing from an implied promise. If we discard the notion of an implied promise, therefore, as fictitious, there must still be a relation existing between the parties, from which the duty takes its origin; and without the existence of such a relation there was no duty on the one side, and no primary right on the other. Now, it was an elementary doctrine of the law pertaining to partnership that, resulting from their mutual dealings with their joint assets, no promise is ever implied that one partner shall pay to the other any definite sum as the amount due from the proceeds of the undertaking, or as his share of the joint assets. No promise is ever implied from the existence of this relation, from the mere fact of there being a joint business, joint profits, or joint property. Or, to express the same doctrine without the use of fictitious terms, from the relation of partnership and the joint undertakings and assets thereof, the law imposed no duty upon one partner to pay to the other any definite sum in respect of his share therein, and gave no corresponding primary right to that other to demand such payment. If, however, there has been an accounting, so that a balance in favor of one is ascertained, a promise is implied on the part of the other or a duty arises on his part-to pay that sum. The right to maintain the action by one partner against another, and to recover a definite sum, depended therefore, and still depends, not upon anything connected with the form of the action, or upon the distinctions between legal and equitable actions, but upon. the very nature of the primary right. Those courts which have held that, under the new procedure, a partner may recover a definite sum from a copartner without an accounting and without an express promise, have in effect decided that the new procedure has materially changed the primary rights of parties, has, in this instance, created a primary right which did not before exist at all, which is a conclusion in direct antagonism with the plainest and best-settled principles of interpretation. In fact, this primary right of a partner against his fellow has not been modified by the reform in the modes of procedure; and under the new system, as under the old, there should be no recovery of a definite sum in any action, unless the facts which create the primary right have occurred, unless there has been or is an accounting and balance ascertained, or an express promise to pay the sum. It is not the case of an equitable primary right being supported by a legal remedy, because the equitable primary right of the partner does not involve the payment of a certain sum; its only remedy is an accounting, and this is preserved in full force and effect. The analysis above given may not be very important in itself; but it will aid in distinguishing primary from remedial rights, and the substances of rights which have not been changed from the formal incidents which have been abolished; it will enable us to determine the exact limits of the modifications made by the reform legislation. § 105. A few instances of other actions will bring this inquiry to an end. It has been held in Nevada that a person claiming to be tenant in common with others of land may maintain an action for partition, whether his title be legal or equitable.2 On the other hand, the Supreme Court of Missouri has decided that the owner of chattels by an equitable title cannot recover damages for their conversion in an action analogous to trover. § 106. I have thus dwelt at length upon the particular case of combining legal and equitable rights and remedies which forms the subject of the present section, because more than any other it involves and expresses the true intent and design of the new system; it is the crucial test of the manner in which the spirit of the reform is accepted by the courts. Probably nothing connected with the practical administration of justice could be more startling to the lawyer of the old school than the suggestion that the owner of a purely equitable estate in lands should be able to bring an action of ejectment to recover possession of the premises; it would be opposed to all his conceptions of law and of equity and of the uses of actions and courts. And yet these conceptions were plainly artificial and arbitrary, and the familiar rules as to the employment of actions as plainly had no foundation in the nature of things, but rested upon words alone. The final object of the reformed American system was to sweep away all of these technicalities, and to allow every primary right to be maintained and every remedial right enforced in the same manner and by a single judicial instrument, untrammelled by the restrictions and limitations which made the practical administration of justice in England and in the United States seem so absurd to the cultivated jurists of Europe. That the numerical weight of authority is at present opposed to my views in relation to the particular matter in question, I fully concede. I believe, however, that in time the influence of an education in the technicalities of the commonlaw system will cease to be felt on the bench and among the members of the bar, and that the practical rules of procedure in all the States will be brought into a perfect harmony with the . letter and the spirit of the reformatory legislation. That an action brought to recover a money judgment alone may be equitable, and based upon purely equitable rights, see Rindge v. Baker, 57 N. Y. 209, 219. 2 Crosier v. McLaughlin, 1 Nev. 348. 3 Walker's Adm'rs. v. Walker, 25 Mo. 367. S. P. Johannesson v. Borschenius, 35 Wisc. 131, 134. SECTION SIXTH. THE NATURE OF CIVIL ACTIONS AND THE ESSENTIAL DIFFERENCES BETWEEN THEM. § 107. Notwithstanding the sweeping language of the codes and practice acts which abolishes all distinctions between the forms of actions heretofore existing, many judges in construing the provisions have declared in most emphatic terms that the change is confined to the external forms alone of actions at law, and that in their essential features certain distinctions and peculiar elements remain which cannot be removed by legislation. This statement is to a certain extent true, if it be confined to what is really the substance of each action, and is not extended so as to include many incidents which, although appearing to be substantial, are really the results of arbitrary conceptions relating to the form; for example, the old rule discussed in the preceding section, which confined the action of ejectment to the recovery of possession of lands in which the plaintiff had a legal estate. If this doctrine, however, is carefully examined, and the examples and authorities in its support are closely analyzed, it will be found that all the unchangeable features and elements which are said. to inhere in different actions, and which cannot be reduced to an identity, pertain to the primary rights sought to be maintained by their means, to the delicts or wrongs by which these rights are invaded, to the remedial rights which thereupon accrue to the injured party, and to the remedies themselves which are the final objects of the judicial proceeding. These features and elements in actions are indeed different, and the difference between them the new system does not propose to abolish nor change. The doctrine itself is, therefore, no more than the statement in another form of the conceded fact that the reformed procedure has not affected the primary rights or the remedies which the municipal -law creates and confers. § 108. As all actions are brought to maintain some primary right invaded by a wrong, and as they result in some one of the many kinds of remedies prescribed by the law, and as in each action the facts from which the primary right arises, and the facts which constitute the wrong, must be stated, and as the plaintiff must demand and seek to obtain some remedy appropriate to the right and the delict, it follows, as a necessary consequence, that the actions, although constructed and carried on according to the one uniform principle of alleging the facts as they actually are and praying for the relief legally proper, must differ in their substance, because the rights, the delicts, and the remedies differ. This necessary feature of civil actions under the codes has been dwelt upon and explained in numerous cases, some of which are cited in the note.1 This doctrine was very clearly stated in a 1 Goulet v. Asseler, 22 N. Y. 225, 227, 228, per Selden J.; Eldridge v. Adams, 54 Barb. 417, 419, per James J.; Hord v. Chandler, 13 B. Mon. 403; Hill v. Barrett, 14 B. Mon. 83, 85, per Marshall J.; Payne v. Treadwell, 16 Cal. 220, 243, per Field C. J.; Lubert v. Chauviteau, Cal. 458, 462, per Wells J.; Jones v. Steamship Cortes, 17 Cal. 487, 497, per Cope J.; Sampson v. Shaeffer, 3 Cal. 196, 205, per Wells J.; Miller v. Van Tassel, 24 Cal. 458, 463, per Rhodes J.; Richmond, &c. T. Co. v. Rogers, 7 Bush, 532, 535; Howland v. Needham, 10 Wisc. 495. One of the most elaborate of these judicial dicta is that of Mr. Justice Selden in Goulet v. Asseler; and, although I dissent from his conclusions as a whole, I quote it in full as an able exposition of a certain class of opinions. He says (p. 227): “It can hardly be claimed that prior to the code an action of trespass or of trover could have been maintained, either against the officer or the plaintiff in the execution under the circumstances here disclosed. If any action would have lain before the code, it could only have been an action founded on the special circumstances of the case, setting forth the injury to the contingent interest of the plaintiff in the property, and claiming damages for such injury." He states that in "trespass or trover" a plaintiff must show that he had either the actual possession or the right to the possession at the time of the alleged taking or conversion, and in such case the value of the property was the measure of damages; while in the "action on the case he must prove his damages, and could recover only what he had actually sustained, and proceeds (p. 228): "Although the code has abolished all distinctions between the mere forms of action, and every action is now in form a special action on the case, yet actions vary in their nature, and there are intrinsic differences between them which no law can abolish. It is impossible to make an action for a direct aggression upon the plaintiff's rights by taking and disposing of his property, the same thing, in substance or principle, as an action to recover for the consequential injury resulting from the improper interference with the property of another in which he has a contingent or prospective interest. The mere formal differences between such ac-. tions are abolished. The substantial differences remain as before. The same proof is therefore required in each of these two kinds of action as before the code, and the same rule of damages applies. Hence in an action in which the plaintiff establishes a right to recover upon the ground that the defendant has wrongfully converted property, to the possession of which the plaintiff was entitled at the time of the conversion, the proper measure of damages is still the value of the property." This rule, in respect to the measure of damages, is undoubtedly correct; but the substantial features, which the learned judge declares remain unaltered, are simply the primary rights of the plaintiff and the wrongs thereto done by the defendant. In the example which he gives the difference which he points out is nothing more nor less than the difference between these rights and the delicts by which they are invaded. course cannot be changed by legislation; but these do not constitute the action; they are the facts upon which the action is based. The whole tenor of the quotation implies a greater resemblance between the external forms of the civil action These of |