66 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.1 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.3 § 398. * 504. Grouping of Actions for Injuries to the Person in some States. Illustrations. In one or two of the States, actions for injuries to the 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 1059. It would be difficult to determine in what class the action for either kind of divorce falls. One judge in McIntosh v. McIntosh suggested that limited divorce was a claim for injury to the person. It seems to be casus omissus. See also Has kell v. Haskell, 54 Cal. 262 (in an action for divorce, adultery and habitual intemperance are distinct causes); Uhl v. Uhl, 52 id. 250 (a cause of action to annul a marriage by reason of a former marriage of the plaintiff to one still alive cannot be joined with a cause of action to quiet plaintiff's title to her separate property, in which defendant falsely claims an interest. But in Prouty v. Prouty, 4 Wash. 174, a complaint in an action for divorce and alimony, which asked that alleged fraudulent conveyances by the husband of all his property be set aside, was held to present no misjoinder. The same complaint cannot unite causes of action for divorce, and to obtain the annulment of a separation deed: Galusha v. Galusha (N. Y. App., May, 1893), 33 N. E. 1062). 1 Maxwell v. Farnam, 7 How. Pr. 236, per Harris J., at Special Term. 2 Hulce v. Thompson, 9 How. Pr. 113. But cannot both causes of action be referred to the single class of " injuries to property"? The recovery of possession is merely the relief, and not the cause of action. 3 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 complete the statement of the judicial interpretation put upon this provision of the statute. For further illustrations, see Buckmaster v. Kelley, 15 Fla. 180; Mattair v. Payne, 15 id. 682; Williams r. Lowe, 4 Neb. 382; Paxton v. Wood, 77 N. C. 11; Suber v. Allen, 13 S. C. 317; Stevens v. Chance, 47 Iowa, 602; Schnitzer v. Cohen, 7 Hun, 665; French v. Salter. 17 id. 546; Dyer v. Barstow, 5 Cal. 652; Brown v. Rice, 51 id. 89. 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; 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 § 399. *505. Holding of Wisconsin Court in Action to quiet Title. 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. § 400. *506. The Three Types of Pleading Prior to the Reformed System. Pleading by Allegation. 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 the Roman Civil Law. Its peculiar features consisted (1) in breaking up an entire pleading into a number of separate paragraphs, — technically 1 McCarty. Fremont, 23 Cal. 196, 197. [See late case of Lamb v. Harbaugh (1895), 105 Cal. 680, 39 Pac. 56.] 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 Wis. 500. "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 commonlaw 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. § 401. * 507. The Equity System of Pleading. 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 suggested 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 generally 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 equitable and legal primary rights and between equitable and legal remedies, especially in the latter. A judgment at law was always a single award of relief; the recovery either of a specific tract of land, or of a specific chattel, or of a definite sum of money, and such judg ment, whatever might be its amount, was either wholly rendered for the plaintiff, or wholly denied. Furthermore, the right to recover a legal judgment always depended upon the existence of a comparatively few important facts,"issuable" or "material" facts, and the very definition of an issuable fact is, one which, if denied and not proved, would prevent the plaintiff from recovering. In equity, the primary rights and remedies of the complainant were often very different from those which existed at law. His remedy was not necessarily a single recovery of some specific form of relief; it might vary in its nature and extent through a wide range; it might be total or partial, it might be absolute or conditional. The defence, on the other hand, might be total or partial; and it might even consist of modifications made in the form of relief demanded by the complainant, or in supplemental provisions added thereto in order to meet some future contingency. In short, it was impossible to say that the complainant's right to recover always depended upon the existence of certain "issuable" facts, the failure to establish either one or even all of which would necessarily defeat his contention. It is true that in some cases the equitable remedy sought by the complainant might be of such a nature that it would follow from the proof of such issuable facts as completely and directly as the plaintiff's right to a common-law judgment does in a legal action. While this was possible in some instances, in the great majority of equitable actions the relief was more complicated; the primary rights were more comprehensive; and the decree as a whole was shaped, modified, and adapted to various circumstances and minor facts upon which individually the cause of action or the defence did not entirely rest, but all of which in combination entered into the resulting remedial right belonging to the litigant parties. Now, on the theory of equity pleading, all these facts should be averred by the complainant or the defendant as the case might be; and while it can be properly said that they all indicate and affect the relief to be awarded by the court, they cannot all be said "to constitute the cause of action" or the defence in the same sense |