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15, “While the New Rules have abolished the dis­tinctIve Common-Law Forms, the essentIal and dif­ferentiating rules applicable to Pleading as estab­lished at Common Law still survive as a basis of Remedial Law.” Mi nturn, S., In Ward v. Huff, 94 N-J.L. 81, 84, 109 A. 287, 288 (1920).

4

Ch. 1



COMMON-LAW PLEADING

5

acquire a better training, and contribute more to the community than did his forbears, but any advance or improvement he may make must be done within the limits of his ancestral background. And so it is with institutions such as the Law which, after all, are merely the product of joint individual effort. The Law is what It is today because of what the Law was yesterday; it cannot escape its an­cestry, and it, too, must progress against the background of its history. Like the individ­ual, so with the Common-Law System of Pro­cedure, which we all proudiy claim as a price­less part of our Anglo-Saxon heritage, we may change, we may add to or take away those Parts of the System which have out­grown their usefulness, just as the Modern Common-Law Actions superseded the Old Real Actions 16 when they became archaic, but it is no more possible, in any realistic sense, to abolish the System in its entirety, with all its implications for both the past and the future, than it is for an individual to destroy his ancestry, or for mankind to abol­ish history or civilization.



• Infinite damage has been done to the cause of legitimate Legal Reform, to the cause of
16, The old Real Actions fell under one of the heads of Blackstone’s famous classification of Actions as Real, Personal and Mixed. The Real Actions were by far the most important during the early develop­mental period of the Common Law. Included there­in were Writs of Right Proper and Writs in the Na­ture of Writs of Rigb~ such Writs, among others, as the Writ of Right de rationabili parte, the Writ of Advowson, the Writ of Dower, the Writ of Dower wide nihul Rabet, and the Writ of quare impedit. These actions were feudal In character and were concerned with disputes over land. Because of the technIcalities required Ia their Control and the length of tUne Involved in carrying their process through, these actions, along wIth those which fell under the other two heads, were gradually super­seded by what are now known as the Eleven Mod­ern Common-Law Personal Actions, as a result of evolutionary steps In the development of the Com­mon Law. What had, In effect, long before occurred as a matter of practice, was officially recognized by the Real Property Limitation Act of 1883, 3 & 4 Wni. IV, e. 27, § 36, which swept aside the Real and Mixed Actions, with certain exceptions, effective December 31, 1834.

Legal Education, at the expense of litigants, students of law, and the public welfare gener­ally, by proclaiming the concept that all that has gone before in our procedural ancestry should be regarded as obsolete and worth­less,’7 and is not to be considered in terms of Modem Pleading and Practice, aid in terms of Modern Legal Education - Those who take this limited view have clearly confused the real merits of the Common-Law System with those portions of the System which were needlessly technical, thus overlooking the salient fact that it had developed many sound and enduring principles of legal procedure. They have also overlooked the fact that there is greater similarity in the essential princi­ples underlying Pleading at Common Law, in Equity, under Modern Codes and Practice Acts, and even under the New Federal Rules of Civil Procedure now in effect in the Fed­eral Courts, than is generally realized.’8


17. Sir Montague Crackeuthorpe, O.C., in an address to the American Bar Association, in reference to the utility of the study of Common-Law Pleading stat­ed:”Jn the hands of those who understood it, the System of Common-Law Pleading was infallible iii attaining the purpose for which it existed. If all who brought Causes to Trial had possessed a prop­er acquaintance with this Branch of Law and a rea­sonable mental alertness, it would never have beer, hinted that Pleading was a means of turning the decision of a question from ‘the very Right of the Matter’ to immaterial points. But pleaders of in­ferlor and slovenly mental disposition suffered themselves to be misled, deliberately It is to be feared, by theft’ more acute brethren; arid the pop— ular mind came to consider the whole system a mere series of traps and pitfalls for the unwary,— an Impediment to Justice that must be abolished. In truth, even these evils might well have been rem­edied by allowing free liberty of amendment, and reducing to a moderate sum the costs payable on the grant of such privilege. Those concerned in i’e­form movements, however, often lose sight of their real object In a feverish anxiety to ‘cut deep’ and at once; and this explains why the system for bringing a cause to trial In convenient and exact form was discarded.” Note, Common Law Pleading, 10 Harv.L.Rcv. 238, 239 (1896).
1*. “There Is no rule regulating the substance of Pleadings under the Codes which Is not either taken directly from the older system, or framed by anal­ogy Ia the application of the same principles. The

BASIS OF MODERN REMEDIAL LAW Cit I

Moreover, the essential elements of causes of action which must be Pleaded have not been abolished by the Reformed Procedure, nor
experience of the past thirty years has demonstrat­ed that the Codes have by no means brought about that perfect completeness and simplicity in all Forms of Legal Procedure hoped for and predicted by their supporters, and expected, perhaps, during the earlier years of their adoptiun.” Shipman, Code

Pleading: The Aid of the Earlier Systems, 7 Yale L.J. 197 (1398).


“The Problems and Functions and Principles of Plead­ing are essentially the same in all systems, wheth­er at Common Law, under the Code, Ia Equity, or by Rule of Court.” Shipman, Handbook of Com­mon-Law Pleading, Introduction, 7, 8 (3d ed. by Ballantine, St. Paul, 1923).
Thus, in Minnesota, Ia the ease of Solomon v, Vinson, Si MInn, 205, 17 NW. 340 (1883), a Code Complaint which alleged, among other things, that the defend­ant was indebted to the plaintiff on an Account Past Due, for Goods Sold and Delivered, was held to contain an the Allegations necessary to consti­tute a good Indebtedness count in an Action of Debt at Common Law, the Court remarking thet “under that System of Pleading It was just as necessary to allege the Facts as it is under the Code.”

in Crump V. MIms, 04 NC. 707, 771 (1370), Rodman, 3., declared: “We take occasion here to suggest to pleaders that the Rules of the Common Law as to Pleading, which are only the rules of logic, have not been abolished by The Code. Pleas should not state the Evidence, but the Facts, which are the Conclusions from the Evidence, according to their legal effect; and complaints should especially avoid wandering Into matter which if traversed would not lend to a decisive Issue. It is the Object of all Pleading to arrive at some Single, Simple and Ma­terial Issue.”


In accord: Parsley & Co. v. Nicholson, 85 NC. 207, 210 (lSfl).

Campbell, 3,, In Henry mv. Co. v, Semonian, 40 Cola. 269, 90 P. 682 (1907), stated: “A Count In Indeblta­tus Assumpsit, framed substantially as required at Common Law, Is now held to be a sufficient com­pliance with the Code mandate as to Allegations of Fact”

Rules of the Common-Law Pleading, as to Materiality, Certainty, Prolixity, and Obscurity, are rules of logic not abolished by the North Carolina Code. Crump v. Mims, 64 N.C. 707, 771 (1870).

The Rules of Pleading at Common Law have act been abrogated by the Code of Civil Procedure. The es­sential principles still remaIn. Henry mv. Co. v. Semonian, 40 CoIn. 269, 90 P. 682 (1907); Hughes, Procedure, Its Theory and PractIce, 488 (ChIcago, 1905).

have the Fundamental Conceptions common to all Systems of Procedure as to the man­ner of making Allegations which reveal the contentions of the rival Parties, been changed. As Lord Mansfield so well said:

“The Substantial Rules of Pleading are founded in strong sense, and in the soundest and closest logic; and so appear, when well understood and explained; though, by being misunderstood and misapplied, they are made use of as instruments of chicane.” 1~ fi~ a result of such misapplication and chicanery by men who resorted to the technicalities of Special Pleading to serve their own selfish ends, as a result of the portrayal by its en­emies of the System as a mere game of skill, in which the helpless litigant became a pawn in a wilderness of arbitrary technicality and confusion; in which it was pictured as the master and not the servant of the courts, or as an end in itself, instead of an instrument for the fair and equitable adjustments of sub­stantive human rights, the System of Plead­ing and Procedure as developed at Common Law, was gradually brought into popular dis­repute by the efforts of well-meaning Re­formers, who emphasized its admitted De­fects, but failed to point out to the people of England and the United States the matchless precision of the Old System as a vehicle for reducing human controversies into distinct Issues of Fact or of Law, which could be sat­isfactorily adjusted, thus achieving the prin­cipal end of all government, to wit, the pres­ervation of Law and Order. Entirely too much time and effort have been expended in criticising25 or eulogizing2’ the Common-


1O- Robinson v. RaIn-, 1 Burr 317 319, 97 Eng.Rep.
330, 331 (1757).
ZO. Thus, the famous historian, Beeves, in referring to the times of Henry VI (1422—1461) and Bdward xv (1461—1483), stated “Such was the humor of the age that this captiousness was not dIscountenanced by the Beach. , . - The calamity has been that after other branches of knowledge took a more lib­eral turn, the mInutiae of Pleading contInued still to be respected with a sort of religious deference.” 3

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COMMON-LAW PLEADING

Law System of Pleading, It now seems ap­propriate that its function as a workable and expanding Instrument of Justice for gen­History of English Law, e. XXIII, 621 (Finlason

ed. PhIladelphia, 1880).

In Allen v. Scott, 13 Ill. 80, 84 (1851), Caton, 3., said:

“It must be admitted that many of these distInc­tions are more artillelal than substantial, and do not contribute very essentially to the promotion of the Ends of Justice. So long, however, as we look to the Rules of the Common Law to govern us in Pleading, we are not at liberty to disregard them.”


Wisconsin Cent. H. Co. v. Wieezorelc, 151 III. 579, 580, 38 N.E. 078, 680 (1894).

“By the wooden manner in which It came to be ad­ministered, many of its artificial distinctions and rules became an obstacle to the very purposes which they were intended to serve, and diverted the at­tention of the Court to side issues, so that the suitor was perhaps unable to get through the vestibule of Justice to have the Merits of his Case considered.” Shipman, Handbook of Common Law Pleading, In­troduction, 6, ii. 11 (2d ed, by Ballantine, St. Paul, 1923).


21. Among the eulogies by Judges, Lawyers and Writers, may be listed the following:
Littleton, during the Reign of Edward IV [1461—1483], In referring to the Art of Common-Law Pleading, declared: “And know, my son, that it is one of the most Honourable, Laudable, and Profitable Tbings in our Law, to have the science of well pleading In Actions Real and Personal; and therefore I counsel thee especially to imploy thy courage and care to learn It.” 2 Coke, Littleton (Institutes of the Laws of England] Lib. 3, Cap. 9, § 534 (1st Am. from the 10th European ed., Philadelphia, 1812).
Professor Samuel Tyler stated: “It (the Common-Law System of Pleading] must be admitted to be the greatest of all judicial inventions.” First Re­port of the Maryland Commissioners on Rules of Practice in the Courts 80, 91 (1855).
“This [the Common-Law] System, matured by the wis­dom of ages, founded on Principles of Truth and Sound Reason, has been ruthlessly abolished in many of our States, who have rashly substituted in Its place the suggestions of sciolists, who invent new Codes and Systems of Pleading to order. But this attempt to abolish all species, and establish a single genus, is found to be beyond the power of legislative omnipotence. They cannot compel the human mind not to distinguish between things that differ. The distinction between the different Forms of Actions for different wrongs, requiring different remedies, lies In the nature of things; it IS abso­lutely Inseparable from the Correct Administration of Justice In Common-Law Courts.” Grier, 3., in

erations, in both England and America, should be pointed up and emphasized as well as its long-term significance as the fountain-source of our Modem Substantive and Reme­dial Rights, if not our very liberties,22 and

finally, its value as an influence which con­tinues and must inevitably continue to mould future Anglo-Saxon Conceptions of Law and
McFaul v. Ramsey, 61 U.S. (20 How.) 523, 525, 15 LEd. 1010, 1011 (1857).

According to Professor Keigwin, Cases in Code Plead­ing, 16 (Rochester, N. Y. 1926), the Code has been of doubtful value In simplifying procedure: “One who will read the Reports of New York or of any other Code State will observe that before the Re­form comparatively few Cases turned upon points of pleading, and that most of such eases involved ques­tions of Substantive Law which were presented in technical guise by reasons of their Development upon the Record; it will also be observed that the adoption of the Code was at once followed by a large Increase of litigation concerning procedural matters, which kind of litigation shows no present signs of abatement. Indeed, the current digests dis­close an immensely greater number of cases decid ing pure Matters of Pleading in the Code States than eases of that kind coming from Common Law Jurisdictions. One reason, of course, is that the Common Law system is so thoroughly settle’] that few novel questions can arise.”

This problem under the Codes is also discussed in Sun­derland, Cases on Procedure Annotated, Code Plead­ing, Preface viii (Chicago, 1913).
“‘The love of innovation induced the State of New York some years ago, to abrogate Common-Law Pleading, and introduce a Code of Procedure for the regulation of litigation in her courts; and not­withstanding the lamentable confusion and uncer­tainty, and the greatly increased expense which has thereby been brought into the Administration of Justice in that State, other States have followed in her track of barbaric empiricism. Mr. Justice Grier has, from the bench of the Supreme Court of the United States, rebuked the folly of abolishing Com­mon-Law Pleading, and substituting the Common-Sense Practice, as it may be called, in its stead.’” Stephen, A. Treatise on the Principles of Pleading, Preface, vii (3d Am. ed. by Tyler, Washington, lJ. C. 1892).
22. Stephen, A Treatise on the Principles of Plead­ing, Introduction, 23 (3d Am. ed. by Tyler, Wash­ington, B. C. 1893). See, also Hemingway, History of Common Law Pleading as Evidence of the Growth of Individual Liberty and Power of the Courts, 5 Ala.L.J, 1 (1929).

S

BASIS OF MODERN REMEDIAL LAW



Ckl

Justice in a free society, if we are to preserve our ideal of Government by Law as opposed to Government by Men.23


What, then, is the place of Common-Law Pleading in the Law and what is its real sig­nificance to Modern Procedure?
THE PLACE OF COMMON-LAW PLEAD­ING IN THE LAW
1. Anglo-American Law is divided into Pub-lie Law and Private Law. Private Law is separated into Substantive Law and Adjective Law, with Common-Law Pleading constituting the first procedural topic thereunder,
ANGLO-AMERICAN law has been sepa­rated into two main divisions—Public Law— which has to do with the regulation of rela­tions between independent states and between a state and its citizens, and—Private Law— which regulates the relations between the citizens of the state. Private law, in turn, is divided into two branches, to wit, Substan­tive Law, which defines rights and liabilities, and Adjective or Procedural Law, which fur­nishes the ways and means of enforcing these rights and liabilities. And Adjective Law, in its broadest aspects and prior to 1848, in­cluded (1) Common-Law Pleading; (2) Equi­ty Pleading; (3) Evidence, and (4) Trial Practice. The position of Common-Law Pleading in the Law will, therefore, appear clearly from the chart on the next page.
As a result of the impact of the New York Code of Procedure in 1848,24 our Modern Sys­23 Apparently the earliest use In America of the

phrase, Government by Law as opposed to Govern­ment by Men, is found in Part I, Art. 30, of the Massachusetts Constitution of 1780.

24. KY.Laws 1848, c. aia

tern of Code Pleading,25 which is a combina­tion of the better elements of the Common Law and Equity Systems of Pleading, came into existence.


The influence of this development under the Codes finally led, in 1938, to the New Federal Rules of Civil Procedure for the reg­ulation of Practice in the Federal Courts.

Following the example of the nation some of the states subsequently abandoned their Codes in favor of a System of Procedural Regulation by Rule of Court. This treatise, however, is concerned primarily with the fundamental principles of Civil Pleading and Practice as developed at Common Law. And Civil Procedure is “the mode of proceeding by which a legal right is enforced, as distin­guished from the law which gives or defines the right.” 26


25. “Code Pleading is the term applied to the Re­formed System of Pleading initiated by the New York Code of 1848 and now in force in - , -American jurisdictions. It Is this latter system which concerns us in this book. But since it de­veloped from the former systems and in many re­spects continues various details and parts of them, it is necessary to consider the antecedents of Code pleading in the other systems.” Clark, Handbook of the Law of Code Pleading, c. 1, History, Systems, and Functions of Pleading, 4 (2d ed,, St. Paul 1947).
26. Poyser v. Minors, 7 Q.B.Div. 329, 333 (1881), Lush,

U.

For a definition of Procedure, compare the following:



“Procedure may be defined as a Series of Symbolic Actions, generally accompanied by words, nnd, in developed societies, by the Exhibition of Written Documents, by means of which Rights or Liberties guaranteed by a society are reasserted by its in­dividual members. ReassertIon Is the Essence of Procedure; for in the sense in which we shall use the term—the sense of regaining before a competent court a status that has been lost or questioned—it assumes an already violattd right.” Greenidge, The Legal Procedure of Cicero’s Time, Introduction, 1 (Oxford 1901).

See. 1 THE PLACE OF COMMON-LAW PLEADING

CHART Srrowrna PosInoN OF COMMON-LAW PLEADING IN THE LAW

9

Aw&to­AMERICAN



LAW

I

PUBLIC



L*w

I

I



PnvAn LAW

I I


ADJECTIVE

LAW

I I

SUBSTANTIVE

ADJECTIVE

SUBStANTIVE

LAW

LAW

LAW

CRIMINAL

PROCEDURE

I

T

AoMxNIsTt’sTIVE



LAW

PROCEDURE

COMMON
I

CODE

LEADING


INTERNATiONAL

LAW

PROCEDURE

EVIDENCE

TRIAL


PRACTICE

10

BASIS OF MODERN REMEDIAL LAW



Ch. 1

THE IMPORTANCE OF COMMON-LAW PLEADING27


2, A knowledge of Common Law Pleading fs important because

(I) Through its study the student ac­quires a working appreciation of

the Historical Development of the

Law;
(II) It is essential as an aid in under­standing the early English and American decisions in which Rul­ings on the Law are only compre­hensible to the modern student In the light of a working knowledge of Pleading at Common Law;

(III) It Is an essential ingredient of the process by which the Law Student acquires the technique of analyzing Causes of Action;


(IV) It is essential to a full and com­prehensive understanding of Mod­ern Pleading and Practice.
To the beginning student or prospective lawyer, an understanding of the fundamental principles of Common-Law Pleading and PrO­cedure is highly essential. While the greater portion of our Modern Law School Curricu­lurn is devoted to a consideration of Substan­five Law, the student should constantly -bear in mind that a litigant’s Substantive Rights ordinarily cannot be effectively sustained ex­
27. “The importance of a study of Common-Law Pleading rests, first, on the relationship between the Modern Substantive and Ancient Remedial Law in the scheme of Forms of Action; second, the rela­tionship between Modern Remedial and Ancient Remedial Law; and, third, the fact that the Older Cases are expressed in Terms of Pleading, so that they cannot be studied understandingly without it. The Statutes which seek to abrogate or simplify Common-Law Pleading use its terms. In order to understand the progress of the law, the well-edu­cated Lawyer must live through its evolution. Fur­ther, in Modern Codes the foundation ideas of plead­ing have not changed.” Shipnian, Elendbook of Common-Law heading, 4, 5 (3d ed. by Ballantine, St. Paul 1023).

See, also, Vanderbilt, Cases and Materials on Modern Procedure and Judicial Administration, c. I, Intro-

duetion: 1. The Importance of Procedure in the Work of the Practicing Lawyer and in the Study of Law (New York 1952).

cept by one adequately trained in the Art and Science of Procedure, who appreciates the technical steps and maneuvers necessary to present properly his client’s case in Court, and how to conduct it to a successful conclu­sion. A mere Mechanic of the Law may get in and out of the court, but often to the detri­ment of the client’s interest, and in a manner destructive of the standards of the legal pro­fession. If, however, he desires to become an Artisan of the Law, to fully appreciate the significance of the Reformed Procedure and the procedural tools used for the protection of his client’s interest, he must understand the fabric of the Common Law out of which they have been constructed. In order to do this he must be conversant with the evolu­tionary steps which led up to our Modern System of Procedure. In short, unless a law­yer is sufficiently expert in handling the pro­cedural devices avai]able under the Law, any knowledge which he acquires concerning the Substantive Law goes for naught. It thus appears that a mastery of Adjective Law is a prerequisite to a mastery of the Law as a whole if a person hopes to become a success­ful lawyer. For as Justice Story so truly said: “No man ever mastered it, (Special Pleading) who was not by that very means made a profound lawyer.” ~ It is necessary, therefore, that every individual who desires to become a serious Student of the Law should have a full appreciation of the impor­tance of Common-Law Pleading.


In the first place the study of Common-Law Pleading is important because through
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