3. An issue of law is raised by a demurrer, which admits the facts stated in the pleading demurred to and denies that the law applicable to those facts entitles the plaintiff to maintain his action, or that the facts stated in the answer constitute a defense; or points out some defect which in law ought to prevent the party whose pleading is demurred to from obtaining the relief sought in his complaint or answer. As will be seen hereafter, these defects must appear upon the face of the pleading demurred to.

4. An issue of fact is raised: 1. By a denial in the answer of facts stated in the complaint; and, 2. By operation of the Code where new matter in the answer is considered as denied by the plaintiff.

The Code of Ohio, and some other States, requires a replication by the plaintiff to new matter set up in the

answer.

5. Under our statutes (Cal. Code C. P., sec. 307), and under the statutes of other States which have adopted a code of procedure similar to ours, only one form of civil action exists.

By this is meant that the formal distinctions between the different common law actions, assumpsit, debt, covenant, trespass, etc., and also between actions at law and in equity are swept away: Miller v. Van Tassel, 24 Cal. 458. Formerly it was necessary to decide what form of action must be resorted to in order to obtain the relief justified by the facts, and this form of action must be stated in the writ, though briefly, as that the defendant is required to answer the plaintiff "in an action upon promises," or "in an action of debt," etc., and this form of action must be adhered to in the declaration; so that the pleader was required to decide before he had the writ issued what his form of action must be, and in many cases it was not easy to determine what the form should be; and the consequences of a mistake were serious. So he was required to determine at his peril whether he must resort to a court of law or a court of equity. But now these formal distinctions are taken away, and the pleader is required to state the facts which constitute his cause of action; and whatever relief those facts, being established, may entitle him to, he will obtain whether legal or equitable, or both, or whether they would have made a case in assumpsit,

debt case, or other form of common law action. It was held by the Supreme Court of California in the case of Bowen v. Aubrey, 22 Cal. 570, that "under the Code of Practice, we have but one system of rules respecting pleadings, which governs all cases both at law and in equity. These rules are clearly laid down in the Practice Act; and although in construing that Act we resort to former adjudications, and the old and well established principles of pleading at common law, yet the former distinctions which existed between common law and equity pleadings no longer exist." See, also, Cordier v. Schloss, 12 Cal. 143; Payne v. Treadwell, 16 Id. 243.

6. In the New York Code of Procedure, section 69, the distinction between actions at law and suits in equity is expressly abolished. In Ohio, Iowa, Nevada, Oregon, Idaho, Arizona Territory, and most of the states and territories of the Union, as well as New York and California, "the distinction in the modes of obtaining relief which formerly characterized the proceedings in courts of law and in equity are abolished," but only as to the forms of actions, and not as to the principles which govern them: 1 Whitt. Pr. 553; see, also, 1 Van Santv. Pl. 39; Nash's O. P. 2; 2 Till. & Sh. 1; Swan's Pl. 21; Stat. of Iowa, sec. 2,608; Traphagen v. Traphagen, 40 Barb. 537; McBurney v. Wellman, 42 Barb. 390; Dunnell v. Ketellas, 16 Abb. Pr. 205; Van Renssalaer v. Reed, 26 N. Y. 558; Denman v. Prince, 40 Barb. 219. In Cole v. Reynolds, 18 N. Y. 74, Harris, J., says: "By the Code, the distinctions between actions at law and suits in equity are abolished. The course of proceeding in both classes of cases is now the same. Whether the action depends upon legal principles or equitable, it is still a civil action, to be commenced and prosecuted without reference to this distinction. But while this is so with reference to the form and course of proceeding in the action, the principles by which the rights of the parties are to be determined remain unchanged. The Code has given no new cause of action. In some cases parties are allowed to maintain an action who could not have maintained it before, bat in no case can such an action be maintained where no action at all could have been maintained before upon the same state of facts. If, under the former system, a given state

of facts would have entitled a party to a decree in equity in his favor, the same state of facts now, in an action prosecuted in the manner prescribed by the code, will entitle him to a judgment to the same effect. If the facts are such that, at common law, the party would have been entitled to a judgement, he will, by proceeding as the Code requires, obtain the same judgement." "What was an action at law before the Code, is still an action founded on legal principles; and what was a bill in equity before the Code, is still a civil action founded on principles of equity:" Nash's Pl. & Pr., vol. 1, p. 4; see, also, Cal. Code C. P., sec. 307.

7. In adjudications under the New York Code: Howard v. Tiffany, 3 Sandf. 695; 1 Van Santv. Pl. 41, it is held that although the forms of actions at law and in equity are abolished, yet that even in the pleadings, or the manner of stating the facts which constitute plaintiff's cause of action, there is still a broad distinction between cases where legal instead of equitable relief is asked. Following in the same track, the Supreme Court of California has held, "the distinction between law and equity is as marked as ever, though there is no difference in the form of a bill in chancery and a common law declaration under our system:" Rowe v. Chandler, 1 Cal. 167; Dewitt v. Hayes, 2 Id. 463; Lubert v. Chauviteau, 3 Id. 467. Smith v. Rowe, 4 Id. 6; Wiggins v. McDonald, 18 Id. 127.

8. Legal and equitable relief may be asked for in the same action, but the wrongs suffered must be those arising out of or from one and the same transaction, and which would be consistent with the relief asked: Gray et al v. Dougherty, 25 Cal. 266; Moore v. Massini, 32 Id. 590. In the case of The Globe Ins. Co. v. Boyle, 21 Ohio St. 119, it was held that an action might be brought to reform a contract, and to recover on said contract so reformed; and if, when reformed, the cause of action would have been a common law action, then the court will first decide upon the equitable case to reform the contract, and then submit the case to the jury on the contract so reformed. So, also, when relief is asked for in the alternative: Stevenson v. Buxton, 15 Abb. Pr. 352; Barlow v. Scott, 24 N. Y. 40.

9. For a party may have such relief as is adapted to his

case from the proofs: White v. Lyons, 42 Cal. 279; Van Deusen v. Young, 29 N. Y. 29; Denman v. Prince, 40 Barb. 219; Hammond v. Cockle, 2 Hun. N. Y. 495; Bixbie v. Wood, 24 N. Y. 610; While v. Madison, 26 Id. 117. It will therefore be observed that relief is now administered without reference to the technical and artificial rules of the common law: Rowe v. Chandler, 1 Cal. 168; Jones v. Steamship "Cortes," 17 Id. 487; White v. Lyons, supra; Grain v. Aldrich, 38 Cal. 514. The prayer of a complaint is not the subject of a demurrer: Althof v. Conheim, 38 Cal. 230; Hale v. Omaha Nat. Bk., 49 N. Y. 626.

10. The intention of the legislature was evidently to adopt a "uniform and complete system:" Humiston v. Smith, 21 Cal. 134, whereby the old and cumbersome forms of pleading would be dispensed with. Yet the facts constituting plaintiff's cause of action are required to be stated as fully under the new practice as under the old: Miller v. Van Tassel, 24 Cal. 463; Conaughty v. Nichols, 42 N. Y. 83, 87.

OF WHAT PLEADINGS CONSIST.

11. Pleading consists in alleging facts upon the one side. and denying them upon the other: Buddington v. Davis, 6 How. Pr. 402. But the facts so alleged always presuppose some rule of law applicable to them: Gould's Pl., secs. 2 and 3. And hence in all complaints, while the law governing the facts and the facts coming within the law, taken together, exhibit the cause of action, yet the facts are expressed, while the law is understood, for it would be of no avail "for either party to state facts of which no principle of law could be predicated in his favor:" Gould's Pl. 2. Therefore the pleader first inquires by reference to the law for a remedy, and if he finds there is no legal remedy, he at once knows there has been no wrong, known to the law, committed, and that the courts can give no relief.

12. As fictitious issues are by the Code abolished: N. Y. Code, sec. 72; Snell v. Loucks, 12 Barb. 385; analogies of the old system of pleading are not in all cases a safe guide under the Code: Bush v. Prosser, 1 Kern. 347. Two prominent elements intended in the new system are, that falsehood should not be put upon the record, and that the pleadings should disclose the facts relied on in support or defense of an action. Id.

DISTINCTION BETWEEN THE PLEADINGS AND THE ACTION.

13. The difference between the pleadings and the action is that the pleadings show the nature of the demand, and the defense; or, in common terms, the pleadings are the complaint and answer: 1 Bur. Law. Dict. 38; while the action is the history of the whole cause, including: 1. The complaint, which names the parties, and states the injury suffered; 2. The process, which brings the party into court to answer as to these injuries; 3. The answer of defendant, which admits, or denies, or avoids, etc.; 4. The trial, wherein the nature of the demand and defense are presented by legal proofs; 5. The judgment, wherein the court allows or refuses the remedy asked; 6. The execution, by which the legal rights of the parties are obtained.

14. It is provided by the Code that "the pleading on the part of the plaintiff shall be the complaint, and demurrer to defendant's answer; and on the part of the defendant, the demurrer and answer: Cal. Code, sec. 422. Since the statutes of our State have in express terms defined what the pleadings are, it requires no reference to the text-books on the subject for further definition.

15. It is also provided by statute that "when a defendant is entitled to relief, as against the plaintiff alone, or against the plaintiff and a co-defendant, he may make a separate statement in his answer, of the necessary facts, and pray for the relief sought, without bringing a distinct cross action;" so that parties litigant may settle all questions of difference between them, so far as is practicable, in one. action, and not litigate by piecemeal. Interminable litigation is not favored by our legislature nor by our courts, the decisions being numerous and pointed on this subject.

16. It will be our purpose, therefore, to consider the subject of pleadings herein; reserving the consideration of the action for future chapters, where the various steps will be considered under their appropriate heads.

FACTS ONLY MUST BE STATED.

17. In the decision of the Supreme Court in the case of Green v. Palmer, 15 Cal. 411, it is made a rule that "facts only must be stated." See, also, 1 Van Santv. 244; 2 Till.