upon one cause of action would be against the defendant personally, to be made de bonis propriis, while the judgment upon the other cause of action would be against him in his representative or official capacity, and not perhaps to be made out of his own property; as, for example, it might be made de bonis testatoris. This reasoning, borrowed from the old law, is a mere formula of words, for there is nothing in the nature of things which prevents such a double judgment. It is just as easy for such a judgment to be rendered in one action as it is for two distinct judgments to be granted in separate suits. The argument, however, like so much of so-called legal reasoning, still has convincing force with most of the courts, even while administering the reformed system. The following cases are given as illustrations of this doctrine, and in all of them the joinder was pronounced improper: A complaint on a partnership debt against the defendant as surviving partner, and against him in a separate count as executor of his deceased partner; against the defendant personally, and also as an executor or administrator; 2 in a suit against an executor or administrator, a demand which existed against the deceased in his lifetime, and a different demand which arose from a promise made by the executor or administrator after the death, for as to the latter claim the defendant is personally liable. On the same principle a demand upon a contract between the plaintiff and the defendant, and a claim by the plaintiff as a shareholder in an unincorporated company against the defendant as president thereof, in respect of matters connected with the management of its affairs, were held to be improperly joined, since the defendant's liability if any in the latter cause of action existed against him as a trustee. The plaintiff must also sue in the same capacity in respect of all the causes of action. He cannot in one count sue as an executor or administrator, and in another sue in his personal character. In an action for malicious prosecution the complaint contained three counts: the first for the malicious prosecution of the plaintiff himself; the 1 Landau v. Levy, 1 Abb. Pr. 376. 2 McMahon v. Allen, 3 Abb. Pr. 89. 3 Ferrin v. Myrick, 41 N. Y. 315, 322; Austin v. Munro, 47 N. Y. 360, 364; s. c. 4 Lans, 67. See, however, Tradesman's Bank v. McFeely, 61 Barb. 522, which cannot be regarded as correct in the light of these other decisions. 4 Warth v. Radde, 18 Abb. Pr. 396. 5 Lucas v. N. Y. Cent. R. R., 21 Barb. 245. But see Armstrong v. Hall, 17 How. Pr. 76, per C. L. Allen J., at Special Term, - a decision in direct opposition to the rule stated in the text. second for the same wrong done to his wife, she having been imprisoned; and the third for a like tort to his minor children. The only legal ground for recovery on the second and third of these counts was declared to be the loss of the wife's society in the one case, and of the children's services in the other; as these injuries were personal to the plaintiff, they could be joined with the cause of action alleged in the first count for the tort directly to himself.1 § 503. The cases which follow do not admit of any classification, and several of them are of doubtful authority, even if not palpably erroneous. A cause of action for a limited divorce on the ground of cruelty, desertion, and the like, cannot be united with one for an absolute divorce on account of adultery, or of any other matter prescribed by statute. The two demands are simply incompatible. It was decided by one judge in New York that a demand to recover possession of a chattel cannot be united with a claim of damages for the taking, detaining, and converting the same. But as the codes expressly authorize the joinder of claims for the possession of chattels, and of damages for the withholding the same, this decision can hardly be sustained. "Withholding" clearly includes "detaining," and as it is not a technical term, it was doubtless intended to embrace "taking" and "conversion" as well. A cause of action to recover the possession of a certain parcel of land, cannot, it has been said, be united with a demand of damages caused by the defendant's trespasses upon other lands of the plaintiff. It has also been held that a claim to recover possession of land, and a demand of damages for the defendant's tortious entry upon the same land, cannot be joined, because they are entirely inconsistent.5 § 504. In one or two of the States, actions for injuries to the 1 Rogers v. Smith, 17 Ind. 323. 2 Henry v. Henry, 17 Abb. Pr. 411; McIntosh. McIntosh, 12 How. Pr. 289. It would be difficult to determine in what class the action for either kind of divorce falls. One judge in the last case suggested that limited divorce was a claim for injury to the person. It seems to be casus omissus. ferred to the single class of "injuries to property"? The recovery of possession is merely the relief, and not the cause of action. 5 Budd v. Bingham, 18 Barb. 494, per Brown J. It is difficult to perceive this inconsistency. This and some similar decisions are cited, not because they have any authority or any value, but to com 3 Maxwell v. Farnam, 7 How. Pr. 236, plete the statement of the judicial interper Harris J., at Special Term. 4 Hulce v. Thompson, 9 How. Pr. 113. But cannot both causes of action be re pretation put upon this provision of the statute. person constitute a separate class, and are not grouped together with those for injuries to property. Thus in California, an "action to recover damages for alleged injuries to the person and property of the plaintiff, and for his false imprisonment, and for forcibly ejecting him from a house and lot in his possession, and detaining the possession thereof from him," was held to be an improper union, as it embraced causes belonging to two if not three of the classes specified in the code;1 and in another case, the joining of a claim to recover possession of land, damages for its detention, damages for the forcible expulsion of the plaintiff from the premises, and the value of the improvements made by him, was pronounced equally an error for the same reason.2 § 505. An action to quiet the title to three different tracts of land which had belonged originally to different owners, and which the plaintiff held under three distinct tax deeds executed at separate times, was held in Wisconsin to violate the requirements of the code. The proceeding was likened by the court to the foreclosure in one action of three different mortgages given by three different owners upon three separate parcels of land.3 SECTION THIRD. THE GENERAL PRINCIPLES OF PLEADING. § 506. In order that the system of pleading introduced by the reformed procedure may be accurately understood, I shall briefly describe the essential principles and doctrines of those which prevailed in different courts at the time of its adoption, and the comparison which can thus be made will be of great assistance in arriving at correct results. The three types of pleading then known either in England or in this country were the common law, the equity, and that which in the absence of a distinctive name I shall call "pleading by allegation." The last-mentioned method was used in the courts of admiralty, of probate and divorce, the ecclesiastical courts, and wherever the law as administered was based directly upon the doctrines and modes of 1 McCarty v. Fremont, 23 Cal. 196, 197. 2 Mayo v. Madden, 4 Cal. 27. And see Bowles v. Sacramento Turnp. Co., 5 Cal. 224; Bigelow v. Gove, 7 Cal. 133. 8 Turner v. Duchman, 23 Wisc. 500. - the Roman Civil Law. Its peculiar features consisted (1) in breaking up an entire pleading into a number of separate paragraphs, technically" allegations," - each of which should properly contain a single important circumstance or principal fact going to make out the cause of action; and (2) the statement in each allegation of all the minute and subordinate facts which taken together compose, and are evidence of, the main circumstance or fact relied upon by the litigant party to sustain his contention. The pleading as a whole, therefore, comprised not only averments of the substantial facts, the important conclusions of fact which must be established by the proofs, those facts which in the common-law system are called “issuable" or "material,” -but also a narrative of all the probative facts, of all the evidence from which the existence of the "issuable facts must be inferred. A libel constructed upon this theory disclosed the whole case of the complaining party; if properly framed, it set forth in a continuous and narrative form a complete account of the transaction, describing the situation of the parties at its commencement, all the various incidents which happened in its progress, its final conclusion, and the results produced upon each, and prayed for such relief as the law affords in the given case. The codes of several States have plainly intended to borrow one feature of this system; that is, the separation of the pleading into a number of distinct paragraphs continuously numbered, and each comprising the statement of a single material or issuable fact. The second feature, namely, the narrative of probative facts and circumstances in the manner above described, violates the fundamental and essential principle of the reformed procedure. § 507. The equity method of pleading, when freed from all the superfluous additions which had become incorporated with it in practice, and when thus reduced to its mere essential elements, consisted in a statement of all the facts indicating the relief to which the complainant is entitled, and in this original aspect it did not differ in principle from that prescribed by the codes. I purposely make use of the expression "facts indicating the relief to which the complainant is entitled," rather than the ordinary phrase "facts constituting the complainant's cause of action," for a reason which will be fully explained in the sequel. I now call attention to the form of expression, for it is important, and will assist in removing certain difficulties which have been sug gested by some of the judges in their exposition of the codes. Practically, a bill in equity, prior to any modern reforms, had been changed from the original simplicity as above described, and had come to consist of three distinct parts or divisions, the narrative, the charging, and the interrogative. The first of these contained a statement of the complainant's case for relief; the second anticipated and rebutted the defendant's supposed positions; while the last was used to probe the defendant's conscience, and to extract from him admissions under oath in his answer concerning matters within his own knowledge which the existing rules of evidence did not permit to be proved by the parties themselves as ordinary witnesses. The result of these modifications was an almost entire departure from the simple conception of equity pleading. The bill and answer were gen-. erally made to include the evidence by which either party maintained his own contention, or defeated that of his adversary, and also legal conclusions and arguments which more appropriately belonged to the briefs of counsel and the discussions at the hearing. All this, I say, although very common and perhaps universal in the actual practice before any reforms through legislation or rules of court, was really unnecessary, and formed no essential part of the theory of equity pleading. The only indispensable portion of a bill was the narrative. Except for the purpose of eliciting evidence from the defendant, there was no more reason why this should contain mere evidence of the facts that were the foundation of the complainant's demand for relief, as contradistinguished from those facts themselves, than there was for the same kind of probative matter to be inserted in a declaration at law. The bill in equity, as has been already said, should comprise a statement of all the facts which show the relief to which the complainant is entitled, which indicate the nature and extent of that relief whether total or partial, and the modifications or exceptions to be made in it; while the answer should perform the same office for the defendant. By the application of this doctrine, a bill in equity was generally quite different in its contents from a declaration at law; it was ordinarily more minute in its averments, and contained statements of matter which in a legal action would more naturally and properly belong to the evidence rather than to the allegations of issuable facts. The reason for this distinction lay entirely in the difference between |