the following elements: a primary right possessed by the plaintiff, and a corresponding primary duty devolving upon the defendant; a delict or wrong done by the defendant which consisted in a breach of such primary right and duty; a remedial right in favor of the plaintiff, and a remedial duty resting on the defendant springing from this delict, and finally the remedy or relief itself. Every action, however complicated or however simple, must contain these essential elements. Of these elements, the primary right and duty and the delict or wrong combined constitute the cause of action in the legal sense of the term, and as it is used in the codes of the several States. They are the legal cause or foundation whence the right of action springs, this right of action being identical with the "remedial right" as designated in my analysis. In accordance with the principles of pleading adopted in the new American system, the existence of a legal right in an abstract form is never alleged by the plaintiff; but, instead thereof, the facts from which that right arises are set forth, and the right itself is inferred therefrom. (The cause of action, as it appears in the complaint when properly pleaded, will therefore always be the facts from which the plaintiff's primary right and the defendant's corresponding primary duty have arisen, together with the facts which constitute the defendant's delict or act of wrong 1 [Jameson v. Bartlett (1902), 63 Neb. 638, 88 N. W. 860.] 2 [Meaning of "Cause of Action." "The question is not determined by the Code of Civil Procedure, for though in section 484 it prescribes what separate causes of action may be joined in the same complaint, it now here assumes to define what is a single cause of action:" Reilly . Sicilian Asphalt Paving Co. (1902), 170 N. Y. 40, 62 N. E. 772. "We are of the opinion that the cause of the action consists of the negligent act which produced the effect, rather than in the effect of the act in its application to different primary rights, and that the injury to the person and property as a result of the original cause gives rise to different items of damage:" King v. Chicago, M. &St. Paul Ry. Co. (1900), 80 Minn. 83, 82 N. W. 1113. "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 relief prayed for, or to which they may be entitled, is no part of their cause of action (Pomeroy's Code Remedies, § *455): " Hahl v. Sugo (1901), 169 N. Y. 109, 62 N. E. 135. "In every cause of action there must exist a primary right, a corresponding primary duty, and a failure to perform that duty:" South Bend Chilled Plow Co. v. George C. Cribb Co. (1900), 105 Wis. 443, 81 N. W. 675. "In applying the rule, some confusion has resulted from the neglect to define the § 348. * 454. Cause of Action and Remedial Right Differentiated. Examples. The cause of action thus defined is plainly different terms 'cause of action' and 'action;' to which, therefore, our attention must be first directed. The latter term is very commonly confounded with the suit (litis) in which the action is enforced. But this is not the technical meaning of the term, according to which an action is simply the right or power to enforce an obligation. 'An action is nothing else than the right or power of prosecuting in a judicial proceeding what is owed to one,' which is to say, an obligation. . . . The action therefore springs from the obligation, and hence the cause of action' is simply the obligation. . . . The 'cause of action' is therefore to be distinguished, also, from the 'remedy,' - which is simply the means by which the obligation or the corresponding action is effectuated, and also from the 'relief' sought: Frost v. Witter (1901), 132 Cal. 421, 64 Pac. 703. "It does not appear from the petition that the trustees have been in any way extravagant or negligent or dilatory in the perform ance of the duties of their office, or that they have violated any law or contract, or caused any injury, or done any wrong, or withheld any right, or that they have threatened or are about to do any such thing. At least, some one of these elements is essential to a cause of action:' Sands v. Gund (1903), Neb. - 93 N. W. 990. "As was said in Bruil v. Northwestern M. R. Ass'n, 72 Wis. 430, the words' cause of action' include the act or omission without which there would be no cause of action or right of recovery:" Hosley v. Wisconsin Odd Fellows Mutual Life Ins. Co. (1893), 86 Wis. 463, 57 N. W. 48. Threatt v. Mining Co. (1896), 49 S. C. 95, 26 S. E. 970. "To borrow the phraseology of Mr. Pomeroy, the primary right, which the plaintiffs are seeking to enforce, is the right to have the assets of the estate of their alleged debtor applied to the payment of their claim, and the breach of this primary right in the modes stated in the complaint is the delict complained of. These two things, says Mr. Pomeroy, in his work on Remedies, according to the Code Pleading, at page 487, sec. 453 [*453], constitute the cause of action: " Sheppard v. Green (1896), 48 S. C. 165, 26 S. E. 224. Smith v. Smith (1897), 50 S. C. 54, 27 S. E. 545, quotes the author's Analysis of a cause of action with apparent approval. Broughel v. So. New Eng. Tel. Co. (1900), 72 Conn. 617, 45 Atl. 435. "A cause of action consists of a right belonging to the plaintiff, which has been violated by some wrongful act or omission of the defendant:" Goodrich v. Alfred (1899), 72 Conn. 257, 43 Atl. 1041. Wildman . Wildman (1898), 70 Conn. 700, 41 Atl. 1, quotes from § 453 of the text and adds: "Stated in brief, a cause of action may be said to consist of a right belonging to the plaintiff and some wrongful act or omis sion done by the defendant, by which that right has been violated." * "It is said, though, that even if the amendment set forth a cause of action, it should have been stricken for the reason that it set forth a new and distinct cause of action. To determine this question it is necessary to ascertain what was the cause of action set forth in the original petition. If the right to recover the property in controversy upon the legal title was the cause of action originally set forth, then it would seem that the amendment did contain a new cause of action, for it was based upon an alleged right to recover the property upon an equitable title. It needs no argument to show that an equitable title is entirely separate and distinct from a legal title. To say, however, that the cause of action set forth in the original petition was the right to recover upon a legal title is giving the term 'cause of action' too restricted a meaning. The cause of action in such a case consists, not only of the right of the plaintiff but of the wrong of the defend from the remedial right, and from the remedy or relief itself. The remedial right is the consequence, the secondary right which springs into being from the breach of the plaintiff's primary right less v. Inland Acid Co. (1902), 115 Ga. 968, 42 S. E. 449. ing to these cases, it will be seen that the term cause of action' is used with no purpose to indicate a rule by which one cause of action may be distinguished from another, but merely with reference to the existence of a cause of action. We use expressions like these: A cause of action for negligence;' 'A cause of action for malicious prosecution;' 'A cause of action for desertion.' They indicate the subject or subject-matter of the action, but are meaningless as showing a particular cause of action. In Rodgers v. Association, 17 S. C. 406, are the following query and answer: What is a cause of action? We must keep in view the difference between the subject of the action and the cause of the action. The subject of the action was what was formerly understood as the subject matter of the action. . . . The cause of the action is the right claimed or wrong suffered by the plaintiff, on the one hand, and the duty or delict of the defendant, on the other; and these appear by the facts of each separate case. We have empha sized closing words to call especial attention to the rule when applied to a particular case: Box v. Chicago, R. I. & P. Ry. Co. (1899), 107 Ia. 660, 78 N. W. "A 'cause of action,' as the term is used in pleading, is not the name under which a state of facts may be classed, but it consists of the facts giving rise to the action. An action is a proceeding in court. Code, section 3424. The cause of action is the fact or the facts that 'justify it or show the right to maintain it.' Hence, when a material fact, necessary to a recovery, is omitted from a petition, we say it does not state a cause of action. In 5 Am. & Eng. Enc. Law, 776, it is said: The cause of action is the entire state of facts that gives rise to an enforceable claim. The phrase comprises every fact which, if traversed, the plaintiff must prove in order to obtain judgment.' This definition is taken, substantially, from the case of Read v. Brown, 22 Q. B. Div. 128. In that case it is said that a cause of action is 'every fact which it would be necessary for plaintiff to prove, if traversed, in order to support his right to the judgment of the court.' It is then said: 'It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.' In Hutchinson v. Ainsworth, 73 Cal. 452 (15 Pac. Rep. 82), speaking of a cause of action with reference to the statute of limitations, it is said: The facts upon which the plaintiff's right to sue is based, and upon which the defendant's duty has arisen, coupled with the facts which constitute the latter's wrong, make up the cause of action.' See Bruil v. Association, 72 Wis. 430 (39 N. W. 529), and Rapalje & Lawrence, Law Dictionary, 180. Care should be taken not to confuse the term 'cause of action' as used abstractly and as used in pleading. In a general sense, the term means a claim which may be enforced.' Bucklin v. Ford, 5 Barb. 393. 'It is a right which a party has to institute and carry through an action.' Myer v. Van Collem, 28 Barb. 230. The right to prosecute an action with effect.' Douglas v. Forrest, 4 Bing. 704. Look- Colo. 468, 45 Pac. 416.] 694. "But neither the conception of the plaintiffs or defendant, nor the kind of relief prayed, while they may be considered, is conclusive upon the court as to what the cause of action is which the pleading sets up. That fact must be determined from the pleading itself. Upon a careful analysis of this complaint, we think it quite clear that the real cause of action stated is the violation by the trustee of his duty to the cestuis que trustent in indirectly buying for himself the trust property at the executor's sale: " French v. Woodruff (1898), 25 Colo. 339, 45 Pac. 416. "The foundation of the cause of action in both complaints is the transaction constituting the trust; the cause of action in both is the violation of that trust; and both are equitable in character: " Mullen v. McKim (1896), 22 by the defendant's wrong, while the remedy is the consummation or satisfaction of this remedial right. From one cause of action, that is, from one primary right and one delict being a breach thereof, it is possible, and not at all uncommon, that two or more remedial rights may arise, and therefore two or more different kinds of relief answering to these separate remedial rights. This is especially so when one remedial right and corresponding relief are legal, and the other equitable; but it is not confined to such cases. One or two very familiar examples will sufficiently illustrate this statement, and will show the necessity as well as the ease of discriminating between the "cause of action" and the remedy. Let the facts which constitute the plaintiff's primary right be a contract duly entered into by which the defendant agreed to convey to the plaintiff a parcel of land, and full payment by the plaintiff of the stipulated price and performance of all other stipulations on his part. Let the delict be a refusal by the defendant to perform on his part. This is the cause of action, and it is plainly single. From it there arise two remedial rights and two corresponding kinds of relief; namely, the remedial right to a compensation in damages, with the relief of actual pecuniary damages; and the remedial right to an actual performance of the agreement, and the relief of an execution and delivery of the deed of conveyance. If the plaintiff in one action should state the foregoing facts constituting his cause of action, and should demand judgment in the alternative either for damages or for a specific performance, he would, as the analysis above given conclusively shows, have alleged but one cause of action, although the reliefs prayed for would be distinct, and would have belonged under the old system to different forums, the common law and the equity courts. Again: let the plaintiff's primary right be the ownership and right to possession of a certain tract of land, and let the facts from which it arises be properly alleged; let the delict consist in the defendant's wrongful taking and retaining possession and user of such land for a specified period of time, and let the facts showing this wrong be properly averred in the same pleading. Evidently the plaintiff will have stated one single and very simple cause of action. The remedial rights arising therefrom, and the remedies themselves corresponding thereto, will be threefold, and all of them legal: namely, (1) the right to be restored to possession, with the actual relief of restored pos session; (2) the right to obtain compensation in damages for the wrongful withholding of the land, with the relief of actual pecuniary damages; and (3) the right to recover the rents and profits received by the defendant during the period of his possession, with the relief of an actual pecuniary sum in satisfaction therefor. Here, also, the single nature of the one cause of action plainly appears, and its evident distinction from the various remedial rights and actual remedies which do or may arise from it.1 § 349. * 455. Test in Determining whether Different Causes of Action have been stated. Caution in Applying Test. The result of this analysis of the necessary elements which enter into every action is simple, easily to be understood, and yet exceedingly important; and the principle I have thus deduced will serve as an unerring test in determining whether different causes of action. have been joined in a pleading, or whether one alone has been stated. If the facts alleged show one primary right of the plaintiff, and one wrong done by the defendant which involves that right, the plaintiff has stated but a single cause of action, no matter how many forms and kinds of relief he may claim that he is entitled to, and may ask to recover: the relief is no part of the cause of action. In applying this test, however, it must be observed that the single primary right, and the single wrong, which, taken together, constitute the one cause of action, may each be very complicated. For example, the primary right of ownership includes not only the particular subordinate rights to use the thing owned in any manner permitted by the law, but also similar rights to the forbearance on the part of all mankind to molest the proprietor in such use. The facts which constitute the delict complained of may embrace not only the wrongful obtaining, and keeping possession, in such a case as the one last supposed, but also the procuring and holding deeds of conveyance, or other muniments of title, by which such possession is made possible, and to appear rightful. These suggestions are necessary to guard against the mistake of supposing that a distinct cause of action 1 The fact that the codes generally seem to treat these different claims for relief as distinct causes of action does not affect the correctness of my analysis; they are plainly no more than separate reliefs or remedies based upon the same facts which constitute a single cause of action. See Larned v. Hudson, 57 N. Y. 151, which is based entirely upon the language of the statute. [Christensen v. Hollingsworth (1898), 6 Idaho, 87, 53 Pac. 211; Vermont Loan & Trust Co. v. McGregor (1897), 5 Idaho, 320, 51 Pac. 102.] |