sense of the term; while in equitable actions facts may be material, and must be alleged, which, while they form the basis of petition alleged a demand of payment at maturity, and notice of non-payment given to the defendants. At the trial the plaintiff proposed to prove facts excusing such demand and notice; and, the evidence being rejected, a verdict was rendered against him. This ruling was sus tained by the Supreme Court. Ewing J., after saying that the plaintiff's mode of pleading would have been proper under the common-law system, proceeds (p. 335): “As the vice of the old system of pleading was its prolixity, its general averments and general issues, and the delay and expense inseparable from it, the new system which we have adopted has little claim to be considered a reform, unless it avoids such defects, and furnishes rules by which the great object of all pleadings is attained; viz., to arrive at a material, certain, and single issue. Hence the great improvement of our code consists in requiring the pleadings to contain a plain and concise statement of the facts constituting the cause of action, or matter of defence. Facts, and not evidence nor conclusions of law, must be stated. Every fact which the plaintiff must prove to maintain his suit is constitutive in the sense of the code." The petition in this case, it was held, should have averred the matters of excuse sought to be proved. The description here given of issuable or "constitutive" facts is appropriate to legal actions only, and must be modified in its terms in order to meet the characteristic features of many equitable suits. Wills . Wills, 34 Ind. 106, is also very instructive, and contains a principle of wide application which distinguishes the present from the former theory of pleading. The action was brought to recover for the use and occupation of certain land, and the complaint was claimed to be radically defective. Downey J. said (p. 107): "The objection to the complaint is that it contains no allegation that the defendant ever promised to pay, or ever agreed to pay, or that he was indebted to the plaintiff. To this the appellee answers that it is not necessary to use any word 2. that shows an undertaking, agreement, or promise on the part of the defendant to pay rent, for none ever existed; that the complaint states facts, and, technically speaking, the law raises the implied promise to pay; that the right of action, in fact, does not stand upon any contract or agreement, but arises from principles of equity and good conscience. . . . This is not a question relating to the right to recover rent on the one hand, or the liability to pay it on the other; but it is a question of pleading. The question is this: Is it allowable, and is it sufficient, for the party to set forth the facts from which a prom. ise or indebtedness may be implied? or must he allege the promise or indebtedness, and then support it at the trial by proof of the circumstances?" The judge here cites Gould on Pleading, p. 48, § 19, to the effect that a promise must always be averred in pleading in assumpsit, and in debt the declaration alleges that the defendant is indebted, and proceeds: "The complaint in this case is sui generis. We cannot classify it. It is not in assumpsit, for it alleges no promise; it is not in debt, for it alleges no indebtedness. But, after some examination of cases decided under codes similar to our own, we have come to the conclusion, that, tested by the code, the complaint may be sufficient. It would seem that, contrary to the rule at the common law, a party in a suit for a money de mand on a contract like this, where the contract is implied, may allege the facts from which the law implies the promise; and it will be sufficient without alleging the promise or an indebtedness" He adds that it is better, however, in all cases to allege a promise. "It is always good pleading to state the legal effect of the contract, whether it be written or oral." This opinion is a striking illustration of the pertinacity with which courts have clung to the ancient notions of actions and pleading that have been entirely abrogated by the reform legislation. Although reaching a correct decision, this conclusion was evidently forced upon the judges, and was accepted by them, as it were, under protest. It actually appeared or modify the remedy demanded, do not properly constitute the cause of action. This distinction will be fully developed in sub strange to them that a complaint, drawn position and right. That right was to rein exact conformity with the requirements cover the account in an action upon conof the new procedure, should not be a dec- tract. Upon the judgment so recovered laration in assumpsit or in debt, as though the defendant could neither be arrested the code was not enacted to produce this nor imprisoned. The credit could not be very result. The remark with which the regarded as so much money paid for the quotation ends was undoubtedly true while purposes of this action, and, in that way, the common-law methods prevailed; but a judgment recovered which could be it is exactly contrary to the whole spirit enforced by imprisonment. It is insisted, and intent of the present system: it means that, under the code, forms of action are that a party, instead of stating the actual abolished, and that the facts showing the facts as they really occurred from which right of action need only be stated. This the liability called an implied contract is correct; but it does not aid the plainarises, should state the legal effect of those tiff. The facts are not stated. The facts, and should thus aver a fiction, as plaintiff had a cause of action against the was required by the former rules of plead- defendant upon an account for money ading. In De Graw v. Elmore, 50 N. Y. 1, vanced for him. Instead of stating this which was an action to recover back the cause of action, the allegation is in subprice paid to defendant for certain stocks stance that he paid him money as the alleged to have been fraudulently sold to price of stocks fraudulently sold by the the plaintiff, the complaint averred the defendant to the plaintiff, which contract fraud, the plaintiff's election to rescind, a has been rescinded by the plaintiff, and a tender of the stocks, and a demand of the return of the money demanded, which has price. In stating the original sale, it been refused by the defendant. These alleged that the purchase-price had been causes of action differ in substance. The paid in money. On the trial, however, it former is upon contract, the latter for appeared that the plaintiff did not pay tort; and the law will not permit a reany money, but that defendant owed him covery upon the latter by showing a right $16,000 on a prior account growing out of to recover upon the former." In Pfiffner contract, and that the price of the stocks, v. Krapfel, 28 Iowa, 27, 34, Cole J. very $9,000, was paid by giving the defendant truly said: "Our system of pleading is credit for so much on this existing indebt- essentially a fact system, intended to reedness. Upon this evidence a motion for quire the parties in judicial proceedings to a nonsuit was denied, and the plaintiff had state the facts of their claims, and advise a verdict, which was set aside by the Court the opposite party of the true nature and of Appeals. The opinion of the court, by object of the suit. It is against the spirit Grover J., first states the settled rules of and plain intent of our code to allow parlaw as to the remedy of a party who has ties to claim as fruits of their litigation been induced by fraud to enter into a that which was not by the fair and obvious contract: he may affirm the contract, and import of the pleadings put in issue and bring an action for his damages; or he litigated between them." In the very remay rescind, restore to the other party cent case of Louisville, &c. Canal Co. v. all he has received, and recover all he has Murphy, 9 Bush, 522, 527, the Kentucky parted with. In this case the plaintiff Court of Appeals stated the general doeelected to rescind, and to recover back trine in the following manner: "While the money paid. "It turns out that there the ancient forms of pleading are aholwas no money paid, but only a credit given ished, still every fact necessary to enable on a former debt; and the court below the plaintiff in the action to recover must held that he could recover that amount be alleged, and every essential averment if the other facts were proved. This required to make a declaration good at the was error. The contract being rescinded, common law upon general demurrer must the plaintiff was restored to his original be made in the petition. The facts must sequent paragraphs which discuss the mode of pleading in equitable actions. This single and simple principle lies at the foundation of the entire reformed method introduced by the codes. When fully comprehended, it will be found to involve all the other requisites of the system. It distinguishes the new pleading from each of the three types which formerly prevailed, and which have already been described; from the modes used in the equity and the civil-law courts, by wholly dispensing with any statements of probative matter, and by limiting the averments to the fundamental facts which constitute the cause of action or the grounds of relief; and from the mode used in the common-law courts, by discarding all fictions, all technicalities, all prescribed formulas, and by requiring the material facts to be alleged as they actually existed, and not their legal effect, and still less the legal conclusions inferred from them. In discussing this fundamental principle, and developing from it the subordinate doctrines and practical rules which are involved in its general terms, its component elements must be separately examined, and the full import of each must be carefully ascertained. This analysis will lead me (1) to define the legal meaning of the term "cause of action" as used in the codes, and to point out the somewhat different senses which must be given to the phrase when it is applied to legal and to equitable actions; (2) to determine the nature of the facts which "constitute the cause of action" in each of its two significations, and in this connection to point out the difference between the "issuable facts" averred be alleged so as to enable the opposite party to know what is meant to be proved, and also that an issue may be framed in regard to the subject-matter of dispute, and to enable the court to pronounce the law upon the facts stated. The dry allegation of the facts in the petition, with out setting forth the evidence of the truth of the statements made, is all that is required." The Supreme Court of Oregon, in Bowen v. Emmerson, 3, Oreg. 452, applied the general principle to the complaint in an action for money due upon simple contract, and stated the essential averments of such a pleading. The facts should be alleged showing that a contract exist ed between the parties which had been broken; the consideration should be men tioned, and the promise, if express; or if there was no express promise, then the facts from which a promise upon a sufficient consideration would be implied by the law; and also the facts showing that the time for payment had expired, or that the contract had been broken in some other manner. In giving this construction to the code, the court declared that the common counts in assumpsit, as used in the old procedure, were not in accordance with these principles, and could not be resorted to. Similar quotations might be almost indefinitely multiplied; but these are sufficient to show the positions assumed by the courts in announcing the most important doctrine of the reformed pleading. in legal actions and the facts material to the remedy but not strictly "issuable" sometimes necessary to be alleged in equitable actions, and to explain the distinction in this respect which inheres in the modes of pleading employed in these two classes of suits; and (3) to discuss the requirement that these material facts should be stated as they actually occurred or existed, and not their legal effect and meaning, and to display its full force and significance. The result of this analysis will then be applied in developing the various general rules which make up the reformed system of pleading. § 518. The term "cause of action" is employed by the framers of the codes in several different connections; but it must be assumed that in each of them it was intended to have the same signification, that, wherever used, it was designed to describe the same elements or features of the judicial proceeding called an action. The courts have never, so far as I have been able to discover, attempted any thorough and exhaustive discussion of the phrase, and determined its meaning by any general formula or definition; and little or no aid will therefore be obtained in this inquiry from judicial interpretation. The few decided cases which venture upon a partial description were quoted in the last preceding section. In another instance, not there referred to, in which the plaintiff alleged that the legal title to certain lands was vested in the defendant, but that these lands were held by him in trust for the plaintiff, and demanded an execution of the trust by conveyance, &c., the cause of action was decided to be "the trust;" the court declaring that in every money demand on contract "the debt" is the cause of action, and holding, that, in the case before them, the cause of action itself— the trust was stated in the complaint, but that the facts constituting it were not averred.1 § 519. The true signification of the term "cause of action" was carefully examined and determined in the second section of the present chapter; and I shall not repeat the course of discussion there pursued, but shall simply recapitulate the conclusions which were reached. Every action is based upon some primary right held by the plaintiff, and upon a duty resting upon the defendant corresponding to such right. By means of a wrongful act or omission of the defendant, this primary right and this 1 Horn v. Ludington, 28 Wisc. 81, 83. duty are invaded and broken; and there immediately arises from the breach a new remedial right of the plaintiff, and a new remedial duty of the defendant. Finally, such remedial right and duty are consummated and satisfied by the remedy which is obtained through means of the action, and which is its object. Now, it is very plain, that, using the words according to their natural import and according to their technical legal import, the "cause of action " is what gives rise to the remedial right, or the right of remedy, which is evidently the same as the term "right of action" frequently used by judges and text-writers. This remedial right, or right of action, does not arise from the wrongful act or omission of the defendant-the delict alone, nor from the plaintiff's primary right, and the defendant's corresponding primary duty alone, but from these two elements taken together. The "cause of action," therefore, must always consist of two factors, (1) the plaintiff's primary right and the defendant's corresponding primary duty, whatever be the subject to which they relate, person, character, property, or contract; and (2) the delict, or wrongful act or omission of the defendant, by which the primary right and duty have been violated. Every action when analyzed will be found to contain these two separate and distinct elements, and in combination they constitute the "cause of action." The primary right and duty by themselves are not the cause of action, because when existing by themselves, unbroken by the defendant's wrong, they do not give rise to any action. For this reason, that definition is clearly erroneous which pronounced the "debt" in an action on contract, or the "trust" in a suit to enforce a trust, to be the "cause of action." Much less can the delict or wrong by itself be the cause of action, because, without the primary right and duty of the parties to act upon, it does not create any right of action or remedial right as I have used the phrase. It is very clear from this analysis that thecause of action" mentioned in the codes includes and consists of these two branches or elements in combination, the primary right and duty of the respective parties, and the wrongful act or omission by which they are violated or broken. § 520. The first of these branches must always, from the nature of the case, be a conclusion of law. The law by its commands creates a rule applicable to certain facts and circumstances, by the operation of which, when these facts and circumstances. |