guishing between the facts which are material and issuable and should therefore be averred, and those which are merely probative or evidentiary and should be omitted. Since the legal primary right and duty are always simple, and demand from the defendant the performance or the omission of some single and well-defined act, they will always depend, for their occasion, upon a few positive, determined, and certain facts, all of which are necessary to their existence, so that neither of these facts could be modified, and much less could be omitted, without entirely defeating the right and duty, and with them the cause of action itself. The same is true of the facts which make up the defendant's delict or wrong. In order, therefore, that any given legal cause of action should exist, in order that any given remedial right or right of action should arise, these determinate, unchanged, and positive elements of fact must all conspire to produce that result, and must be alleged; they literally "constitute " the cause of action, and form the "material" or "issuable " averments spoken of by the courts. The subordinate facts, on the

other hand, which make up the probative matter and the details of evidence, may vary indefinitely in their nature; and so long as they perform their function of establishing the “issuable" averments, the cause of action will not be affected. To illustrate by a very familiar example: In an action to recover damages for the breach of a written contract, the allegation that the defendant executed the agreement is material and issuable; it cannot be modified, and much less abandoned, without destroying the whole cause of action. Its denial raises a direct issue, to maintain or disprove which evidence can be offered. The subordinate probative matter by which this averment is established may vary according to the exigencies of the case, and a resort to or failure with one method will not prevent the use of another. The plaintiff might rely upon the defendant's admissions that he executed the paper, or upon the testimony of a witness who saw him sign. it, or upon the opinions of persons who are acquainted with his handwriting, and who testify that the signature is his. One or the other, or even all, of these means might be resorted to, and the material fact to be proved would remain the same. If, however, instead of directly averring that the defendant executed the written contract, the plaintiff should allege that the defendant had admitted his signature to be genuine, or that a specified indi

This

vidual asserts that he saw the instrument signed, or that persons familiar with his handwriting declare the signature to be his, it is plain that neither of these statements would present a material issue; that is, an issue upon which the cause of action would depend. This familiar illustration covers the whole field of legal actions. The allegations must be of those principal, determinate, constitutive facts, upon the existence of which, as stated, the entire cause of action rests, so that, when denied, the issue thus formed with each would involve the whole remedial right.1 Every legal cause of action will include two or more distinct and separate facts; and in order that these facts may be issuable, the failure to prove any one of them when denied must defeat a recovery. If this fundamental doctrine of the reformed pleading is fairly and consistently enforced in actual practice, the issues presented for trial must necessarily be simple and single. Singleness and simplicity of issues do not require that the cause should contain but one issue for the jury to decide, one affirmation and denial the determination of which disposes of the whole controversy. This result of the common-law special pleading is often described by enthusiastic admirers of the ancient system, but it was seldom if ever met with in the actual administration of justice. The issues are single when each consists of one and only one material fact asserted by the plaintiff and controverted by the defendant, of such a nature that its affirmative decision is essential to the cause of action, while its negative answer defeats a recovery. The reformed theory of pleading contemplates and makes provision for such issues; and if its provisions are faithfully carried out, the disputed questions of fact would be as sharply defined, and as clearly presented for decision to juries, as can be done by any other possible method.

§ 421. *527. The Doctrine as Applied to Equitable Suits. The discussion thus far of this particular doctrine has been confined to legal actions; are any modifications necessary to be made in its statement when applied to equitable suits? The differences in form between legal causes of action and remedies on the one side and equitable causes of action and reliefs on the other have been described, and need not be repeated. By virtue of these inherent differences, the material facts which must be alleged in an equitable suit are often, in their nature and effects, quite unlike the

1 [Nichols v. Nichols (1896), 134 Mo. 187, 35 S. W. 577, quoting the text.]

“issuable" facts which constitute a legal cause of action. In the legal action the issuable facts are few; in the equitable suit the material facts upon which the relief depends, or which influence and modify it, are generally numerous, and often exceedingly so in the former they are simple, clearly defined, and certain; in the latter they may be and frequently are complicated, involved, contingent, and uncertain. These are mere differences of external form, but there is another much more important, and which more nearly affects their essential nature. The legal cause of action so completely rests for its existence upon the issuable facts, that if any one of them when denied. fails to be established by proof, the plaintiff's entire recovery is defeated thereby, a result which is recognized by all the judicial decisions as involved in the very definition of a legal issuable fact. An equitable cause of action may undoubtedly rest in like manner upon a given number of determinate facts. In general, however, as has already been fully explained, facts may exist material to the recovery in a certain aspect, or in a certain contingency, or to a certain extent, and which therefore enter into the cause of action, but which are not indispensable to some kind or measure of relief being granted to the plaintiff. These facts if established will determine the character, extent, and completeness of the remedy conferred by the court; but if they are not established, the remedy is not thereby wholly defeated; it is only in some particulars modified, limited, or abridged. Since these classes of facts assist in determining the nature, amount, and details of the relief to be awarded, they in part at least "constitute the cause of action" within the true meaning of the term, and must be alleged. While the material facts of an equitable cause of action differ in the manner thus described from the issuable facts of a legal cause of action, the single and comprehensive principle of the reformed procedure embraces and controls both classes of suits. Mere evidence, probative matter as contradistinguished from the principal facts upon which the remedial right is based, are no more to be spread upon the record in an equitable than in a legal action. A distinction inheres in the nature of the causes of action, and from this distinction the facts material to the recovery in an equitable suit may be numerous, complicated, affecting the right of recovery partially instead of wholly, modifying rather than defeating the remedy if not

established; but still they are the material facts constituting the cause of action, and not mere details of evidentiary or probative matter.1

§ 422. *528. This Distinction between Material Facts in Legal and Equitable Actions Sustained by the Courts. The existence and necessity of this distinction between the material facts to be alleged in legal and equitable actions are fully recognized and admitted by judicial opinions of the highest authority. It also√ prevails, I believe, universally in practice. By no judge has it been more accurately and exhaustively discussed than by Mr. Justice S. L. Selden in two early cases which, although without the binding authority of precedents, have the force of cogent and unanswerable reasoning.3 With the practical conclusions in reference to the nature of the material facts that should be averred in an equitable complaint or petition at which Mr. Justice Selden arrives, I entirely concur; his course of argument upon which those conclusions are based is the same in substance which has been pursued in the foregoing paragraphs. I wholly dissent, however, from his inference that these results are not contemplated by and embraced within the single and comprehensive principle announced by the codes, that the facts constituting the cause of action, and they alone, must be stated. This inference does not follow from his argument, nor from the final positions which he reaches; it is wholly unnecessary; and it has been rejected by judges who have accepted and maintained the very doctrines concerning the nature of equitable pleading under the code which he so ably supports. It is only by giving to the phrase "facts constituting the cause of action" a narrow interpretation, which it was plainly not intended to receive, that the material facts of an equitable cause of action can be thus widely separated from the issuable facts of a legal one. Both are aptly described by the phrase which is found in all the codes. The averment of issuable facts in one class of cases, and of the material facts affecting the remedy in the other class, without the details of evidence or probative matter relied upon to establish

[See Smith v. Smith (1897), 50 S. C. 54, 27 S. E. 545, where the court quotes with approval almost the entire section of the text relative to the difference between material facts in equity and issuable facts at law.]

2 See People v. Ryder, 12 N. Y. 433, 437; Horn v. Ludington, 28 Wis. 81, 83; White v. Lyons, 42 Cal. 279, 282.

8 Rochester City Bank v. Suydam, 5 How. Pr. 216; Wooden v. Waffle, 6 How. Pr. 145.

either, is a necessary consequence of the single comprehensive principle which underlies the whole reformed system.

§ 423. *529. Facts should be alleged as they actually existed or occurred, not their Legal Effect. The third and last point remains to be considered in this general discussion. The issuable facts in a legal action, and the facts material to the relief in an equitable suit, should not only be stated to the complete exclusion of the law and the evidence, but they should be alleged as they actually existed or occurred, and not their legal effect, force, or operation. This conclusion follows as an evident corollary from the doctrine that the rules of law and the legal rights and duties of the parties are to be assumed, while the facts only which call these rules into operation, and are the occasion of the rights and duties, are to be spread upon the record. Every attempt to combine fact and law, to give the facts a legal coloring and aspect, to present them in their legal bearing upon the issues rather than in their actual naked simplicity, is so far forth an averment of law instead of fact, and is a direct violation of the principle upon which the codes have constructed their system of pleading. The peculiar method which prevailed at the common law has been fully described; it was undoubtedly followed more strictly and completely in certain forms of action than in others; in a few instances as in a special action on the case the declaration was framed in substantial conformity with the reformed theory. But in very many actions, and those in constant use, the averments were almost entirely of legal conclusions rather than of actual facts. The familiar allegations that the plaintiff had "bargained and sold,” or “sold and delivered," that the defendant "was indebted to the plaintiff," or "had and received money to the plaintiff's use," and very frequently even the averment of a promise made by the defendant, may be taken as familiar illustrations from among a great number of other similar phrases which were found in the ordinary declarations. Rejecting as it does the technicalities, the fictions, the prescribed formulas, and the absurd repetitions and redundancies, of the ancient common-law system, the new pleading radically differs from the old in no feature more important and essential than this, that the allegations must be of dry, naked, actual facts, while the rules of law applicable thereto, and the legal rights and duties arising therefrom, must be left entirely