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

was said that in each kind of judicial proceeding the facts constituting the cause of action or defence should alone be alleged, this rule was not followed in actual practice. In a commonlaw action the "issuable facts" only were spread upon the record. The plaintiff never narrated the exact transaction between himself and the defendant from which the rights and duties of the parties arose; he stated what he conceived to be the legal effect of these facts. Thus, if the transaction was a simple arrangement respecting the sale and purchase of goods, instead of disclosing exactly what the parties had actually done, the pleader used certain formulas expressing the supposed legal effect of what had been done, as that he had "sold and delivered" or had "bargained and sold" the chattels; and, if a mistake was made in properly conceiving of this legal effect, that is, if the real facts of the transaction, as disclosed by the evidence, did not correspond with this conception of their legal effect taken by the pleader, the plaintiff might be, and, unless permitted to amend, would be, turned out of court. On the equity side the facts as they occurred, rather than the legal aspect of or conclusions from these facts, were set forth, according to the original theory of equitable pleading. In practice this narrative was always accompanied by a detail of mere evidentiary matter, which was inserted, not because it was necessary to the statement of the cause of action, but because it was a means of obtaining admissions from the defendant, and of thus making him a witness in the cause against himself. A bill in equity had, therefore, two entirely distinct uses and offices; it was a narrative of the facts from which the plaintiffs' rights to relief arose, and it was an instrument for obtaining evidence from the opposite party. This latter purpose, which was known as "discovery," the codes have expressly abolished, and have substituted in its stead the more direct method of an oral examination of one party by the other, if desired, either on the trial or preliminary thereto.

§ 75. Upon the adoption of the reformed system in New York there arose at once in that State, and subsequently in other commonwealths, two schools of interpretation in reference to the modes of pleading prescribed by the new procedure. One school maintained that all the distinctive features and elements of the common law and of the equity modes of pleading remained in

full force, and that the legislature had simply abolished certain names and certain technical rules of mere form. This particular theory was a necessary and evident corollary of the broader principle advocated by the same school, and already explained in the present section, that the division of actions into legal and equitable still existed, in all that pertained to their substantial nature; if actions were now, as before, legal or equitable, the most characteristic features of the two classes, that which marked their difference in the most emphatic manner, the peculiar modes of pleading appropriate to each, were of course preserved. In a common-law cause the pleader was to follow the common-law rules of pleading, and in an equity suit the equity rules. This doctrine was asserted and was sustained with great ability and earnestness by several judges in the infancy of the system. It would be useless to cite all the reported decisions in which it was advocated; and I shall only refer to a few which have always been regarded as leading. The other school asserted that all the distinctions between the commonlaw and the equity modes of pleading had been embraced within the sweeping language of the statute, and had been discarded; that one general principle of pleading was applicable to the civil action in all cases, whatever might be the nature of the primary right it sought to maintain, or of the remedy it sought to procure. This principle, which was stated in a preceding paragraph, is simple, universal, and natural. It is merely that the pleader must narrate in a plain and concise manner the actual facts from which the rights and duties of the parties arise, and not his conception of their legal effect, nor, on the other hand, the mere detail of evidence which substantiates the existence of those facts. This comprehensive principle applies to all kinds of actions, to one founded upon a legal right and seeking a legal remedy, and to one founded on an equitable right and seeking an equitable remedy; and it avoids all questions and difficulties as to the "issuableness" of the matters

1 Rochester City Bank v. Suydam, 5 How. Pr. 216; Wooden v. Waffle, 6 How. Pr. 145. I cite these, because they were pioneer cases, and in no others have the arguments in favor of the theory which they maintain been presented with greater fulness and more ability. That they are

special term decisions detracts from their authority; they are not, however, quoted as precedents, but simply as illustrations of the course of judicial action in the matter of interpreting the code of procedure.

alleged. Undoubtedly, from the very nature of the primary rights invaded and of the remedies demanded, the narrative of facts will generally be much more minute, detailed, and circumstantial in actions brought to maintain equitable rights and to recover equitable relief than in those based upon legal rights and pursuing legal relief, but this incident does not alter or affect the principle which governs all cases; the pleader in both cases sets out the facts which entitle him to the remedy asked, and no more; it simply happens that legal remedies usually depend upon a few positive facts, while equitable remedies often arise from a multitude of circumstances, events, and acts, neither of which, taken by itself, would have created any right or imposed any duty. It would be useless to, incumber the page by a reference to all the reported cases in which this doctrine has been approved; and I shall merely cite one or two which are leading in point of time, and which may be regarded as examples of the class. Without entering upon any discussion of these two theories, it is enough to say that the latter one has been accepted as expressing the true intent and spirit of the new procedure, and the former has left scarcely any traces in the practical administration of justice in the great majority of the States. The forms contained in the most popular and approved text-books upon practice and pleading furnish a sure test; and, without exception, these are all based upon the method of interpreting the codes last described. And yet with great inconsistency, as it seems to me, the courts have generally held that the ancient forms of common-law pleading in assumpsit may be used in actions upon contract, especially where the contract is implied; that they sufficiently meet the requirements of the codes, although they do not set out the actual facts of the transaction from which the legal right arises. Thus, it has been decided that the count in indebitatus assumpsit for goods sold and delivered is a sufficient complaint or petition in an

1 Milliken v. Cary, 5 How. Pr. 272; Williams r. Hayes, 5 How. Pr. 470; Peopler. Ryder, 12 N. Y. 433, 437. The doctrine of the text was very clearly and accurately stated by Crocker J., in Bowen . Aubrey, 22 Cal. 566, 569. See contra, the remarks of Holmes J., in Meyers v. Field, 37 Mo. 434, 441. It will be seen in

the sequel that the Supreme Court of Missouri stands quite alone- or at least did so until a very recent day in its theory of interpretation, and retains the distinctions between legal and equitable forms, in as marked a manner as though no change had been made by the statutes.

action to recover the price. The difference between this ruling of the courts and the theory first above stated is, that according to the latter theory the common-law mode of stating a legal cause of action or defence must be followed in substance, while by the decisions referred to it may be followed in the particular classes of actions described. But even this ruling, although, as I think, a plain departure from the essential spirit of the new system, is of little practical importance; the bar have, with almost absolute unanimity, adopted the method of stating the facts as they occurred, and do not attempt to aver in their stead the legal fictions of promises which are never made, or conclusions of law which are in no sense of the term actual facts. There are other important features of an action-the parties, the union of different causes of action or defence, affirmative relief to the defendant, the form of the judgments, and the like which have been greatly affected by the general provision of the statute abolishing the distinctions between legal and equitable methods, and the judicial interpretation given thereto; but it is impossible to discuss them in any general manner, and their particular treatment is reserved for subsequent chapters.

SECTION THIRD.

THE COMBINATION BY THE PLAINTIFF OF LEGAL AND EQUITABLE PRIMARY RIGHTS AND OF LEGAL AND EQUITABLE REMEDIES IN ONE ACTION.

§ 76. The general principles of unity, developed in the preceding sections, will now be applied to the several cases which are constantly arising in the practical administration of justice, for the purpose of ascertaining how far the abolition of all distinctions between actions at law and suits in equity has affected the process of stating causes of action, and praying for and obtaining remedies by the plaintiff. It was in this very feature of the

1 Allen v. Patterson, 7 N. Y. 476, 478. Some of the State legislatures have by a statutory enactment set forth forms of pleading under the code, and thus made them regular and valid. It is strange that in some of these the spirit of the

code is directly violated, forms of complaints or petitions being sanctioned which are identical with the ancient common counts, and therefore allege fiction instead of facts. See, for example statutes of Indiana.