order that the principle might be expressed in its most comprehensive manner, and might include equitable as well as legal actions. As will be shown in the sequel, it is only in legal actions that the material or issuable facts which are to be averred "constitute the cause of action" in the strict sense of the term; while in equitable actions facts may be material, and must be alleged, which, while they form the basis of or modify the remedy demanded, do not properly constitute the cause of action. This distinction will be fully developed in subsequent 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 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 v. 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. In Pfiffner v. Krapfel, 28 Iowa, 27, 34, Cole J. very truly said: "Our system of pleading is essentially a fact system, intended to require the parties in judicial proceedings to state the facts of their claims, and advise the opposite party of the true nature and object of the suit. It is against the spirit and plain intent of our code to allow parties to claim as fruits of their litigation that which was not by the fair and obvious import of the pleadings put in issue and litigated between them." In the very recent case of Louisville & P. Canal Co. v. material facts to be alleged as Murphy, 9 Bush, 522, 527, the Kentucky Court of Appeals stated the general doctrine in the following manner : "While the ancient forms of pleading are abolished, still every fact necessary to enable the plaintiff in the action to recover must be alleged, and every essential averment required to make a declaration good at the common law upon general demurrer must be made in the petition. The facts must 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, without setting forth the evidence of the truth of the statements made, is all that is required." See, as further examples, Clark v. Bates, 1 Dak. 42; Clay Cy. v. Simonsen, 1 id. 403, 430; Scott v. Robards, 67 Mo. 289; Dunn v. Remington, 9 Neb. 82; Ingle v. Jones, 43 Iowa, 286. 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 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. The term " cause codes in several § 412. *518. The Term "Cause of Action." of action" is employed by the framers of the 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, etc., the cause of action was decided to be "the trust; the court declar ing 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 - § 413. *519. True Signification of the Term. 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 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 pot 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 1 Horn v. Ludington, 28 Wis. 81, 83. 66 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 the "cause 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. 66 § 414. * 520. Complete Statement of Entire Cause of Action would include Legal Rules and Rights and Duties. 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 exist, a right arises, and is held by the plaintiff, and a corresponding duty arises and devolves upon the defendant. While this first factor of the 'cause of action" is therefore always a conclusion or proposition of law, and results from the command of the supreme power in the State as its cause, it necessarily presupposes the existence of certain facts and events as the occasion of its coming into operation. A complete and exhaustive exhibition of it would thus require a statement of the legal rule itself applicable to the given condition of facts and circumstances, and of the primary right and duty arising therefrom; and also an allegation that the facts and circumstances themselves to which the rule applies, and on the occasion of which the right and duty arise, do actually exist or have existed. If this principle were adopted in pleading, every cause of action would demand a mingled averment of legal rules, of the facts and events to which they apply, and of the rights and duties resulting from the operation of the given rule upon the existing facts. In the second branch of the cause of action, there is, on the other hand, no element whatever of the law: it is simply and wholly matter of fact. It consists entirely of affirmative acts wrongfully done, or of negative omissions wrongfully suffered by the defendant; and its statement in a pleading can be nothing more than a narrative of such acts or omissions. A primary right existed in favor of the plaintiff, and a corresponding duty devolved upon the defendant, of which an integral element is a legal rule: this right and this duty, if positive, called upon the defendant to do some act towards the plaintiff, the nature of which depended upon the nature of the right and duty; if negative, they called upon the defendant to forbear from doing some act towards the plaintiff, the nature of which was determined in like manner. In the one case, the defendant's delict consists in his not doing the act which his duty obliged him to do; and in the other case, in doing the act which his duty forbade him to do. In both instances, therefore, the wrong which constitutes the second factor or branch of the cause of action is a fact more or less complex, and not either wholly or partially a legal conclusion or rule. § 415. *521. Term as Applied to Legal Actions. Such being the general nature and signification of the term “cause of action, its different phases of meaning, when applied either to legal or to equitable actions, will next be pointed out and described. These differences do not extend to its essential elements; they are wholly formal, and they result entirely from the external differences sometimes subsisting between legal and equitable primary rights and between legal and equitable remedies. In a legal cause of action, the primary right of the plaintiff and duty of the defendant are generally simple in their nature as contradistinguished from complex; that is, they call for some single, simple, and complete act or forbearance on the part of the defendant; and when broken by the defendant's delict, the remedial right and duty which arise always demand a single, simple, and complete act to be done by the defendant; namely, either the payment of a sum of money as debt or damages, or the delivery✔ of possession of a specific chattel, or the delivery of possession ✔ of a specific tract of land, which constitute the only remedies that can be obtained by a legal action. It follows, therefore, from the nature of a legal primary right and duty and of a legal remedy, that the cause of action in a legal suit is always simple, and can be stated, and must necessarily be stated, in such a manner, that the remedial right, if it exists at all, will be shown at once in its completeness and certainty. Furthermore, the legal primary right must necessarily depend upon a few facts; and these being all indispensable to its existence, the absence of even a single one will entirely invalidate the whole cause of action, and will show that no remedial right whatsoever has arisen. |