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 action to recover the price.1 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. 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. [Weston v. Brown (1899), 158 N. Y. 360, 53 N. E. 36.] SECTION SECOND. THE COMBINATION BY THE PLAINTIFF OF LEGAL AND EQUITABLE PRIMARY RIGHTS AND OF LEGAL AND EQUITABLE REMEDIES IN ONE ACTION. § 16.76. Principles of Unity Applied to Particular Cases. The general principles of unity developed in the preceding section 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 judicial process -the stating of causes of action, and the obtaining of relief thereon that the distinction spoken of was exhibited in the most marked manner; and it is in this feature, therefore, that the change must be the most sweeping and radical, if the distinction has in truth been abolished. Under the former system a legal primary right, when invaded, could only be redressed by an action at law, and a legal judgment alone was possible; while an equitable primary right must be redressed or protected in an equity suit and by an equitable remedy. A union or combination of the two classes, either wholly or partially, in one action was unknown, unless permitted by some express statute, and was utterly opposed to the theory which separated the two departments of the municipal law. The new system not only permits but encourages—and in its spirit, I believe, requires such a union and combination; for one of its elementary notions is that all the possible disputes or controversies arising out of, or connected with, the same subject-matter or transaction should be settled in a single judicial action.1 1 The code does not require legal and equitable causes of action and reliefs to be united in the same action, even when growing out of the same transaction or subject-matter; a previous decree awarding equitable relief does not, it is held, bar the subsequent recovery of legal relief. Bruce v. Kelly, 5 Hun, 229, 232. [See Hahl v. Sugo (1901), 169 N. Y. 109, 62 N. E. 135, in which it is held that a previous recovery of legal relief bars the subsequent recovery of equitable relief based on the same cause of action. In this case the facts were as follows: Plaintiffs and defendant were the respective owners of adjoining lots in the city of Buffalo. Defendant in erecting a brick house on her lot encroached on plaintiffs' lot. In 1896 plaintiffs brought an action to recover the land thus encroached upon. § 17. 78. Both Equitable and Legal Relief Awarded. Illustrations. When the plaintiff is clothed with primary rights, both legal and equitable, growing out of the same cause of action or the same transaction, and is entitled to an equitable remedy, and also to a further legal remedy, based upon the supposition that the equitable relief is granted, and he sets forth in his complaint or petition the facts which support each class of rights, and which show that he is entitled to each kind of remedy, and demands a judgment awarding both species of relief, the action will be sus Plaintiffs recovered in this action and upon a second trial recovered again, and in 1898 judgment was entered in their favor establishing their title in fee to the land in dispute. The execution issued on the judgment was returned "by the sheriff with an endorsement thereof stating in substance that the strip of land described therein was occupied by a portion of the stone foundation and brick wall of defendant's house, and that it was impracticable for him to remove the same." A motion by plaintiffs at "a Special Term for an order directing the defendant to remove that portion of the wall of her house which encroaches upon the plaintiffs' land" having been denied, plaintiffs thereupon brought an "action in equity to compel the defendant to remove said en croaching wall from their land." The judgment recovered by plaintiffs in the former action was pleaded in bar. The Supreme Court sustained the action and granted the relief prayed for, and this judgment was unanimously affirmed by the Appellate Division." The Court of Appeals, in its opinion reversing the judgment, among other things, said: "Let us now see whether the plaintiffs have more than one cause of action arising out of the wrong of the defendant, and if not, what that cause of action is. The plaintiffs are the owners of a strip of land upon which the defendant has wrongfully entered and erected a wall which is a portion of her house. The facts alleged show one primary right of the plaintiffs and one wrong done by the defendant which involves that right. Therefore the plaintiffs have stated but a single cause of action, no matter how many forms and kinds of relief they may be entitled to. . . . The plaintiffs' right is to recover possession of their land. The defendant's wrong consists in the entry upon and use of the land without the plaintiffs' consent. The particular nature of that wrong may require the application of different remedies for the enforcement of the right. But that does not change the nature of the cause of action, nor entitle the plaintiffs to split it into several causes of action. The complaint in the first action stated the facts upon which the plaintiffs based their claim of title and right to possession. Under its allegations the title as well as the right to possession could be tested. (Cagger v. Lansing, 64 N. Y. 417.) The right to possession involved the removal of the encroaching wall, for without such removal there could be no real transfer of possession. This in turn required equitable relief, which, under proper pleadings and an appropriate method of trial, could have been granted in the same action in which the title and right to possession were adjudicated. (Corning v. Troy Iron & Nail Factory, 40 N. Y. 191; Broiestedt v. S. S. R. R. Co., 55 id. 220.) The fact that plaintiffs' complaint lacked the averments which would have apprised the court of their right to equitable relief, and that the course of the trial furnished no indication that they intended to claim such relief, is no excuse for the commencement of a separate and independent action upon the single cause involved in the prior action. It would be novel practice, indeed, to permit the correction of errors in that summary and extra-judicial manner." Pringle v. Hall (1899), Ariz., 56 Pac. 740: An action for the reformation of a contract may be joined with an action on the contract. Text, § *76, quoted at length.] tained to its full extent in the form thus adopted. He may, on the trial, prove all the facts averred, and the court will in its judgment formally grant both the equitable and the legal relief.1 It will be noticed that this proposition embraces only those cases in which the legal relief demanded rests upon and flows as a consequence from the prior equitable relief, but the principle of the rule is not confined to such cases; it extends also to those in which the two remedies, although connected with the same transaction or subject-matter, are not connected as cause and effect.2 This is the most complete union of legal and equitable primary rights and remedies in one action which can be made; but it is limited and restricted to those cases in which these rights and remedies arise from the same transaction or subject-matter. It is not generally possible to join one legal cause of action with another entirely independent equitable cause of action, there being no antecedent connection between the two. In the cases described above, where the union is permitted, there is, in fact, no joinder of different causes of action; there is only the union 1 Laub v. Buckmiller, 17 N. Y. 620, 626; Lattin v. McCarty, 41 N. Y. 107, 109, 110; Davis v. Lamberton, 56 Barb. 480, 483; Brown v. Brown, 4 Robt. 688, 700, 701; Walker v. Sedgwick, 8 Cal. 398; Welles r. Yates, 44 N. Y. 525; Henderson v. Dickey, 50 Mo. 161, 165; Guernsey v. Am. Ins. Co., 17 Minn. 104, 108; Montgomery v. McEwen, 7 Minn. 351. See, however, Hudson v. Caryl, 44 N. Y. 553, which holds that, in an action brought to remove a nuisance, damages can only be awarded by the verdict of a jury, sed qu. See also Kewaunee Cy. Sup. v. Decker, 30 Wis. 624, 626-630, per Dixon C. J., for a very elaborate opinion in opposition to the doctrine of the text and of the cases cited above in this note. Further illustrations of the text are Stewart v. Carter, Neb. 564; Turner v. Althaus, 6 Neb. 54; Weinland ". Cochran, 9 Neb. 480; Wa Ching v. Constantine, 1 Idaho, 266; Young r. Young, 81 N. C. 91; Kahn v. Kahn, 15 Fla. 400; Leidersdorf v. Flint, 50 Wis. 401; Anderson . Hunn, 5 Hun, 79; Stevens v. The Mayor, etc., 84 N. Y. 296, 305; Wheelock v. Lee, 74 N. Y. 495, 500; Margraf v. Muir, 57 N. Y. 159; Hale v. Omaha Nat. Bank, 49 N. Y. 626; Madi 3 son Av. Bap. Ch. v. Oliver St. Bap. Ch. 73 N. Y. 83; Cone v. Niagara Fire Ins. Co., 60 N. Y. 619. [Hahl v. Sugo (1901), 169 N. Y. 109, 62 N. E. 135; Vaughn v. Georgia Land Co. (1896), 98 Ga. 288, 25 S. E. 441; Harp v. Abbeville Investment Co. (1899), 108 Ga. 168, 33 S. E. 998; Brown v. Latham (1893), 92 Ga. 280, 18 S. E. 421.] Butler v. Barnes, 61 Conn. 399; Bowen v. State, 121 Ind. 235; Jaseph v. People's Sav. Bk. (Ind. Sup. 1889), 22 N. E. 980; Jennings v. Reeves, 101 N. C. 447; Paddock v. Somes, 102 Mo. 226. But see Lawe v. Hyde, 39 Wis. 345. 2 See N. Y. Ice Co. v. N. W. Ins. Co., 23 N. Y. 357, 359; Cahoon v. Bank of Utica, 7 N. Y. 486; Broiestedt v. South Side R. Co., 55 N. Y. 220, 222; Turner v. Pierce, 34 Wis. 658, 665, per Dixon C. J. ; Linden v. Hepburn, 3 Sandf. 668, 671; Gray v. Dougherty, 25 Cal. 266. The legal and equitable causes of action should be separately stated. Gates v. Kieff, 7 Cal. 124; Magwire v. Tyler, 47 Mo. 115, of remedial rights flowing from one cause of action, as will be seen from the judgments of the court in several of the cases cited in the note, and as will be more fully shown in a subsequent chapter. This rule, which has been firmly established by the court of last resort in New York, and which is adopted in all the States with one or two exceptions, has been applied in the following cases among others: in an action by the holder of the legal title to correct his title deed, to recover possession of the land according to the correction thus made, and to recover damages for withholding such possession; 2 in an action by one holding the equitable title to procure defendant's deed to be cancelled, and a conveyance by defendant to himself, to recover possession and damages, and to restrain defendant from conveying away the land; in an action by the grantor of land to correct his deed by the insertion of an exception of the growing timber, and to recover damages for trees embraced in the exception, wrongfully cut by the grantee; in an action to abate a nuisance, to restrain its further commission, and to recover damages therefor; in an action by a widow to establish her right of dower, to procure it to be assigned, to recover possession and damages; and in an action by the vendor of land to recover a money judgment on notes given him for the price, and to foreclose his lien on the land itself." § 18. *79. Doctrine in Missouri and Wisconsin. In Missouri, however, the judiciary for a long time denied the correctness of this rule, and rejected it under all circumstances in which it could possibly be applied. The doctrine was asserted and maintained in a long series of adjudications that the holder of an equitable title, or the possessor of an equitable primary right, can obtain none but an equitable remedy prosecuted in an equitable form of action. The Supreme Court of that State even one legal and the other equitable. Brown v. Wilson (1895), 21 Colo. 309, 40 Pac. 688; Mulock v. Wilson (1893), 19 Colo. 296, 35 Pac. 532; Stock-Growers' Bank v. Newton (1889), 13 Colo. 245, 22 Pac. 444.] recover thereon, as reformed, against joint insurers] 8 Lattin . McCarty, 41 N. Y. 107; Henderson v. Dickey, 50 Mo. 161. 4 Welles v. Yates, 44 N. Y. 525. 5 Davis v. Lamberton, 56 Barb. 480. 1 For additional instances, see post, But see Hudson v. Caryl, 44 N. Y. 553, SS *452-*462. that a jury trial is necessary to the recovery of damages. Parker v. Laney, 58 N. Y. 469. 2 Laub v. Buckmiller, 17 N. Y. 620. [Imperial Shale Brick Co. v. Jewett (1901), 169 N. Y. 143, 62 N. E. 167, in an action to reform a contract of insurance and to Brown v. Brown, 4 Robt. 688. |