as in each action the facts from which the primary right arises, and the facts which constitute the wrong, must be stated, and as the plaintiff must demand and seek to obtain some remedy appropriate to the right and the delict, it follows, as a necessary consequence, that the actions, although constructed and carried on according to the one uniform principle of alleging the facts as they actually are and praying for the relief legally proper, must differ in their substance, because the rights, the delicts, and the remedies differ. This necessary feature of civil actions under the codes has been dwelt upon and explained in numerous cases, some of which are cited in the note. This doctrine was very clearly stated in a recent case as follows: "Although all forms of action were abolished by the code, the principles by which the different forms of action were governed still remain, and now, as much as formerly, control in determining the rights of the parties. In pleading, a party is now to state the facts on which he relies to sustain a recovery; and, if issue be taken thereon, he will be entitled to just such a judgment as the facts established will by the rules of the law warrant, without regard to the name or the form of his action." This judge would, however, have expressed his meaning more accurately if he had said, “The principles by which the different actions were governed still control," instead of "The principles by which the different forms of action were governed still control." The true effect of the reform was well stated by the Court of Appeals of Kentucky in the following extract: "The code makes no change in the law which determines what facts constitute a cause of action, except that, by reducing all forms of action to the single one by petition, it changes the question whether the plaintiff's statement of his cause shows facts constituting a cause of action in trespass,' or 'assumpsit,' or other particular form, into the more general question whether it shows facts which constitute a cause of action at all; that is, whether the facts stated are sufficient to show a 1 Goulet v. Asseler, 22 N. Y. 225, 227, 228, per Selden J., Eldridge v. Adams, 54 Barb. 417, 419, per James J.; Hord v. Chandler, 13 B. Mon. 403; Hill v. Barrett, 14 B. Mon. 83, 85, per Marshall J.; Payne v. Treadwell, 16 Cal. 220, 243, per Field C. J.; Lubert v. Chauviteau, 3 Cal. 458, 462, per Wells J.; Jones v. Steamship Cortes, 17 Cal. 487, 497, per Cope J.; 2 Eldridge v. Adams, 54 Barb. 417, 419, per James J. right in the plaintiff, an injury to that right by the defendant, and consequent damage. What facts do in this sense establish a cause of action is determined by the general rules or principles of law respecting rights and wrongs, and by a long course of adjudication and practice applying these rules to particular actions under the long-established rule of pleading, that the declaration must state the facts which constitute the plaintiff's cause of action. . . . The code does not authorize a recovery upon a statement of facts which did not constitute a cause of action in some form before the code was adopted. And therefore the former precedents and rules and adjudications may now be resorted to as authoritative, except so far as they relate to the distinctions between the different forms of action, or to merely formal or technical allegations." To this clear and accurate exposition I can add nothing which will increase its efficacy as the enunciation of the general principle. The final effect produced by the reform legislation in abolishing all distinctions between actions may be expressed in the following manner: No inquiry is now to be made whether the action is "trespass,” or trover," or " assumpsit," or any other of the ancient commonlaw forms, nor, except for the single purpose of determining the proper tribunal for its trial, whether it is legal or equitable; all these forms and classes are utterly abrogated. For this reason, the various rules which pertain to each of these common-law forms of action, which distinguished one from the other, which determined the peculiar nature and object of each, and which regulated the proceedings in each, are no longer to be invoked. 66 1 Hill v. Barrett, 14 B. Mon. 83, 85. See Johannesson v. Borschenius, 35 Wis. 131, 135; Haughton v. Newberry, 69 N. C. 456, 459-461. 2 [In the case of Draper v. Brown (1902), 115 Wis. 361, 91 N. W. 1001, whether a demurrer should be sustained was held to depend upon the answer to the inquiry whether the action was legal or equitable. The ground urged for sustaining the demurrer in this case was that "two or more causes of action have been improperly united in the complaint." It was overruled by the court below, and this was affirmed by the Supreme Court; but the opinion shows that if the action had been a legal one, the demurrer would have been sus tained. See also Bates v. Drake (1902), 28 Wash. 447, 68 Pac. 961, in which the court refers to the "form" of the action in a different sense than that suggested in the text. Seals v. Augusta Ry. Co. (1897), 102 Ga. 817, 29 S. E. 116; Hamilton v. Mandle (1898), 103 Ga. 788, 30 S. E. 658. But see Casgrain v. Hamilton (1896), 92 Wis. 179, 66 N. W. 118; Rood v. Taft (1896), 94 Wis. 380, 69 N. W. 183; State, ex rel. v. Helms (1898), 101 Wis. 280, 77 N. W. 194; Joseph Dessert Lumber Co. v. Wadleigh (1899), 103 Wis. 318, 79 N. W. 237; Francisco v. Hatch (1903), 117 Wis. 242, 93 N. W. 1118. See also note 1, p. 9, supra.] It is simply an abuse of language to say that the ancient forms of action have been abolished, and that any of the rules which were based upon the existence of these forms, and had no relevancy except in connection therewith, are retained. The only question is, Would the facts stated have enabled the plaintiff to maintain any of the common-law actions or a suit in equity? This is, however, identical with the rule already given, that the primary rights created by the law, and the wrongs committed against them, and the remedial rights resulting from such wrongs, are unaffected by the legislation which only aims at a reform in the procedure. Differ § 47. *109. Illustrative Examples of Doctrine Reached. ence in Form of Discussion under the Old System and the New. Danger herein. The general doctrine thus reached may be properly illustrated by one or two examples which will serve to fix its exact meaning and application. Under the former system, the person who had the actual possession, or the immediate right to the possession, of a chattel which had been taken and carried away or destroyed by the wrong-doer, might recover his compensatory damages in the action of "trespass." To maintain it, the possession or immediate right thereof was an essential element, and the plaintiff recovered the value of the article as the measure of his damages. If, however, the plaintiff had merely a contingent or prospective interest, without right of immediate possession, in a chattel which was at the time the general property of another, his appropriate action for the taking, destruction, or conversion of the chattel by a wrong-doer, was "case,” and his damages were a compensation for the pecuniary loss actually sustained. The distinctions between these two actions have been abolished; but the distinctions between the primary rights and the wrongs which constitute the two causes of action cannot be removed. Now, as before, if the owner in possession sues for the taking or destruction of his chattel, he will recover its value as his damages, while if the holder of a contingent future interest, unaccompanied by possession, sues for the taking or destruction, he will recover the value of his interest. In the one case the plaintiff must establish his possessory right if he seeks to obtain the value of the chattel as his compensation; in the other case the value of his contingent interest will be proved and fixed by the jury. These elements and features, however, do not belong to the action as a judicial instrument for establishing a right; they belong to the primary and remedial rights themselves, which are unchanged by the codes. In the former system of procedure, in the works of text-writers, and in the judgments of courts, the discussion and determination of these unchangeable primary and remedial rights was always intimately connected with, and made an essential part of, the discussion and determination of the rules as to external form in the action itself, so that it was difficult, if not impossible, to distinguish them. From the very nature of the common-law system of procedure, as well as from the judicial habit of mind which it produced, the courts seldom, if ever, passed upon the existence of the primary or the remedial right in the abstract; they decided rather whether the action was of the proper form, or the averments of the pleadings were of the proper nature, to maintain the primary right asserted, and to enforce the remedial right claimed to have arisen. The result was that, in the standard treatises and digests, primary and remedial rights were classified and arranged under the various forms of action known to the common-law procedure. These forms, with all their incidents, have been swept away; but there is danger lest the technical rules which have been abrogated should be confounded with the principles relating to rights and remedies which remain unaffected by the reform.1 § 48. *110. Distinction between Actions ex contractu and those ex delicto Preserved. Election. This Distinction relates to Cause of Action. A particular feature of distinction between actions or rather between the rights upon which actions are based - which existed under the common-law system has been preserved under the new procedure. The general classification being made of actions ex contractu and those ex delicto, there were many cases in which a party who had suffered a wrong by the conversion or the taking and carrying away of his chattels might waive the tort, and bring an action of assumpsit upon the wrong-doer's implied promise to pay the price of the articles taken. The same election still exists. Wherever the plaintiff who could sue in "trespass" or "trover" might, if he chose, bring "assumpsit," he may now waive the tort, and maintain an action upon an implied promise and recover the price of the goods as though there had been a sale. This choice, however, does not relate to the external form 1 See Clark v. Bates, 1 Dak. 42; Frout v. Hardin, 56 Ind. 165. of an action; it relates to the very cause of action itself, to the unchangeable rights which are to be protected and enforced by the judicial proceeding. In one instance, the plaintiff is permitted to view the transaction as an injury to his property by which he has sustained damages which amount to the entire value of that property. In the other, he views the transaction as a sale, by which the title to the property has passed to the defendant, and a duty to pay the price rests upon him. For reasons of public policy, the law allows the injured party to make his choice between these two quite different versions of the same transaction; and, although one of them may be a fictitious view, substantial justice is done thereby. It is plain, however, that this rule has no connection with the external forms of action; it has reference only to the rights and delicts which lie back of all actions.1 § 49. *111. Conclusion. Criticism of the Author. Difference in the Two Systems of Procedure. In conclusion, as the distinctions between the common-law forms of action are abolished, the practice since the codes, sometimes indulged in even by courts in their solemn judgments, of retaining the ancient nomenclature, and of describing a given cause as "trespass," "trover," "assumpsit," and the like, is productive of confusion, and of confusion alone. No practical rules or doctrines in the administration of justice according to the reformed system of procedure result from these old forms; no practical aid in the decision of a cause is to be obtained from regarding it as "trespass," or "trover," or 'assumpsit," or from the giving it any other name; no difficulties are removed nor doubts cleared up by a resort to this method of description. On the other hand, there is a constant tendency to associate with these names the rules and doctrines which were once inseparable from them, but which have been in the most positive manner abrogated by the legislature; in fact, much of the doubt and confusion which even yet accompany the administration of justice in those States which have adopted the reformed 1 As to actions ex contractu and ex delicto, see Goss r. Board of Commissioners, 4 Colo. 468, Pierce v. Carey, 37 Wis. 232; Frout v. Hardin, 56 Ind. 165; Greentree v. Rosenstock, 61 N. Y. 583, 588-590, Fields v. Bland, 81 id. 239; Neudecker v. Kohlberg, 81 id. 296; Neftel v. Lightstone, 77 id. 96; Harrington v. Bruce, 84 id. 103; Sparman » Keim, 83 id. 245, 249; Lockwood ». Quackenbush, 83 id. 607; Conaughty v. Nichols, 42 id. 83; Ledwich v. McKim, 53 id. 307, 316; Ross v. Mather, 51 id 108; Matthews v. Cady, 61 id. 651; Graves v. Waite, 59 id. 156; Lataillade v. Orena, 91 Cal. 565; and post, §§ *554*564, *567-*573. |