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28. This statement by Justice Story was made ía “An Address Delivered Before the Members of the Suf­foll~ Bar, at their Anniversary, on the Fourth of September, 1821, at Boston,” anti is reported in 1 Am.Jur, 1, 28 (18291.

Special pleading, In popular language, refers to the adroit and plausible advocacy of a client’s ease in court. But, from the viewpoint of the Common Law, it refers to piending by Speciflc Aliegations as opposed to General Allegations. tuepburn, The De­velopment of Code Pleading, C. II, OtS, 66 (Cincin­natti, 1897); Clark, Handbook of the Law of Code Pleading, c. I, 13, n. 24 (2d ed., St. Paul 1947)].

Sec. 2

IMPORTANCE OF COMMON-LAW PLEADING



11

its study- the student acquires a working ap­preciation of the Historical Development of the Law. He comes to realize the relation­ship between Procedural and Substantive Law, that Right and Remedy are bound to­gether,2° that Substantive Rights are ex­pressed in terms of Remedial Rights and Forms of Action. In short, it is essential to realize that the Forms of Action are, in fact, the categories of legal liability, and that most of our Modern Substantive Contract, Tort and Property Law, had its origin in and de­veloped out of Procedure, It was in this very connection that Sir Henry Maine ob­served that the rules of Substantive Law had the appearance of being “secreted in the in­terstices of Procedure.” 3° What Maine was saying was that the study of the Forms of Action is one of the richest sources of infor­mation for the student of legal development and theory, that there can be no true under­standing of the Law except as against its Historical Background and that this history can only be fully and intelligently interpreted in the light of the Origin and Growth of Pro­cedure.3~


29- Mait]and clearly had this in mind when, in re­ferring to the dependence of Eight upon Remedy, as illustrated by the Common Law Forms of Action, he declared: “The Forms of Action we have buried, but they still rule us from their graves.” The Forms of Action at Common Law, Lecture 1, 2 (Cam­bridge, 1945).

30. Maine, Early Law and Custom, c. XI, 359 (New York, 1880).
But compare the statement of Street, who declared:

“To the modern mind no line of cleavage is more marked than between Substantive and Adjective law. It was not always so. The very term ‘Adjec­tive Law’ was first used by Bentham. In early stages of legal growth the two elements are insep­arable.” 3 Foundations of Legal Liability, e. I, I (Northport, 1000).



31. Sir Montague Craekenthorp, Q,C., in an address to the American Bar Association, in reference to the ntility of the study of Common-Law Pleading, stat­ed: “And, so long as Written Pleadings remain, the best masters of the art will be they who can in­form the apparent licence of the new system with that spirit of exaethess and self-restraint which

In the second place a knowledge of Com­mon-Law Procedure is essential as an aid in understanding the early English and Amen-can decisions in which Rulings on the Law are only - comprehensible to the Modem Stu­dent in the light of a working knowledge of Pleading at Common Law. The Issues in these early cases, framed at a period of time when it was not yet certain whether the Pleadings should be English, French, or Lat- -in, and while they were still in their Develop2~ mental Stage,32 were necessarily formulated on the basis of the Older System. In conse­quence, the opinions rendered in these cases are sometimes in language and phraseology understandable only by one versed in the Common-Law System of Procedure. Thus, the phrase “the lessor of the plaintiff” is tin­derstandable only in the light of the Fiction of Ejectment; the doctrine of quid pro quo has meaning only to one who has studied the early cases involving Debt; and an “executed consideration” is meaningful only against the historical development of Assuinpsit out of the Tort action of Trespass on the Case Super So Assumpsit. Moreover, one called upon to consider a decision in the Year Books ~ might be struck by the inclusion of much material or discussion which had no apparent bearing upon the final result.3’ But such inclusion would be clear to one acquaint­ed with the History of Pleading, particularly that Stage of it in which the Pleadings were settled in the heat of battle, in the presence of one’s adversary, arid by a process of Oral Altercation in which the Litigants, the En­ilows from a knowledge of the old.” Note, Common

Law Pleading, 10 Earv.L,Iles-. 238 (1896).
22. For the story of the Language of the Pleadings, see 2 Holdsworth, History of English Law 397—402 (London, 1909).
33- Winfield, The Chief Sources of English Legal His­tory, e. I, 11—12 (Cambridge, 1925).

34’ Winfleld, The Chief Sources of English Legal His­tory, c. VII, 153—154 (Cambridge, 1925).

12
rolling Clerks, the Lawyers and the Judges played leading roles.35


In the third plaCe, a knowledge of Proce­dural Law is an essential ingredient of the process by which the beginning Law Student acquires the technique of analyzing Causes of Action.3° Pint, it has value as an exer­cise in legal logic, and it serves “to fix the attention, give a habit of reasoning closely, quicken the apprehension, and invigorate the understanding.” ~ These qualities consti­tute the foundation of all legal investigation. Second, the shadings between the Common-Law Forms of Action afford the student ex­cellent practice in distinguishing one decision from another. Third, no educational device is comparable to a course on Common-Law Pleading for the purpose of teaching the be­ginner how to brief a case, reduce the con­troversy to a single, clear-cut, well-defined Issue of Fact or of Law, determine the hold­ing of the Court and formulate the Rule and Principle of the decision. In short, it is an excellent device for extracting, like the roots of an equation, the true points in dispute; it is a time4ested scheme of matchless preci­sion for separating the Issues of Fact from the Issues of Law, for the purpose of refer­ring the case to the Court or the Jury. Finally, it gives the Student a valuable in­sight into the problem of what constitutes a Cause of Action, which is a necessary tech­nique under any System of Procedure.
In the fourth place, a knowledge of Com­mon-Law Pleading is essential to a full and comprehensive understanding of Modern
~- Odgers, Principles of Pleading and Practice, e. 6, 08 (14th ed., by Lewis Stnrge, London, 1952).
38. Reppy, Introduction to Civil Procedure, c. I, 2

-(Buffalo, 19M).


37. Sir William Zones, Prefatory Discourses to the Speeches of Isaeus, works, vol. IV, p. 34 (London 1784). See, also, Warren, Law Studies, 1058 (3d ed., London 1863).

Ch. 1
Pleading and Practice. In making a study of Pleading at Common Law the student is not dealing with Rules which are obsolete and without intimate relation to the Existing Law. The fundamental principles of Com­mon-Law Procedure still prevail; only its technical and archaic characteristics have been abolished by Modem Codes, Practice Acts and Rules of Court. This is true be­cause Code Pleading springs from a Com­mon-Law Ancestry; because Codification at best is only partial in scope, hence the prin­ciples of Common-Law Pleading necessarily remain as the great Residuary Law from which the gaps in the Code System of Proce­dure have been and will continue to be filled,18 and against the background of which its every provision must be construed and un­derstood. Thus, to give but one example, the Code states that “the Complaint must be stated in plain and concise language,” which calls for explanation or interpretation. Does it actually mean what it says or does it mean something else? After full consideration the Courts have found that at Common Law the Declaration, in order to state a good Cause of Action, was required to state Ultimate Facts, and not Evidentiary Facts and not Conclusions of Law, and that the Rule under the Statutory Provision in question is the same as at Common Law.The provision therefore, has no meaning except as con­strued against its Common-Law Background.
With a statement in mind of the reasons why a knowledge of Common-Law Pleading is important, it may next be helpful to con­sider the Functions of Pleading.
38. “Alt those preexisting Rules [of Pleading, at Com­mon Law or in Equity~ which are not expressly abrogated, and which can properly be made applica­ble under the ne~v system [the Code) remain in force.” Selden, J., in Rochester City Bank & Lester v. Suydam, 5 N.Y. (How.Pr.) 216, 219 (1851).
39. Allen v. Patterson, 7 N.Y. (8 Seld.) 476 (1852).

BASJS OF MODERN REMEDJAL LAW



Sec. 3

FUNCTIONS OF PLEADING

13

THE FUNCTIONS OF PLEADING AT COMMON LAW’°


3. The Functions of Pleading at Common Law ate six in number and may be listed as follows:

(I) The first or Primary Function of Pleading is to reduce the contro­versy between the Parties to a sin­gle, clear-cut, well-defined Issue of Fact or of Law;

(ii) To reduce Questions of Fact to clear-cut Issues by eliminating imma­terial and incidental matter, thus narrowing the ease to one or more specific propositions on which the controversy turns, thus operating as an aid to the Court in admitting or rejecting offers of evidence;

(III) To notify the Parties and the Court of the respective Claims, Defenses,

and Counter-Demands of the ad­versaries;

(IV) To serve as an index to the respective Counsel as to the Points to be Proved at the Trial and as a Guide to the Court in Apportioning the Burden of Proof and Rebuttal as between the plaintiff and defend­ant;

(V) To serve as a Formal Basis for the

Judgment;

(VI) To preserve a Record of the Con­troversy Litigated and to create a foundation for the Plea of Res

Judicata, thus preventing a reliti­gation of the same controversy be­tween the same Parties at a later date.
THE principal reason why many ordinary controversies are utterly fruitless and incon­clusive is that prior to the discussion there is no ascertainment by the contending parties of the Issues at stake. If every discussion were preceded by a clear-cut settlement of
40. “The Function of Pleadings then is to ascertain with precision the matters on which the parties differ and the points on which they agree; and thus to arrive at certain clear Issues on which both par­ties desire a judicial decision,” Odgers, Principles of Pleading and Practice, e. 6, 67 (14th ed., by Lewis Sturge, London 1952).

the questions in dispute, it would not prove difficult to settle the actual differences be­tween the disputants, and in many instances it would develop that there was in reality no difference of opinion.41 Pleading, which is a Statement in a Logical, Legal Form of the Facts which constitute the Plaintiff’s Cause of Action or the Defendant’s Ground of De­fense,42 is designed to prevent the presenta­tion of such fruitless and immaterial contro­versies in Courts of Law. The Functions of Pleading, therefor, have been developed with this end in mind.


The first or Primary Function of Pleading is to reduce the controversy between the Par­ties to a single, clear-cut, well-defined Issue ~ of Fact or of Law, or, stated in another way, to Separate Issues of Law from Issues of Fact4’ so that the Issues of Law might be
41. Shipman, Handbook of Common law Pleading, Editor’s Introduction, S (3d ed. by Ballantine, St. Paul 1923).

42- Boeock vt Leet, 210 Ill.App. 402 (1917). For other definitions of the term “Pleadings,” see Brumleve ‘c Cronan, 176 Ky. 818, 197 SW. 498, 503 13917), In which Hurt, J., stated: “Pleadings are the state­ments which set out the Causes of Action and Grounds of Defence and make Issues in the Action which is to be Tried”; and Smith v. Jacksonville Oil Mill Co., 21 Ga.App. 679, 94 SE. 900 (1918), in which Luke, J., declared: “Pleadings are the Writ­ten Aflegations of what is affirmed on the one side or denied on the other, disclosing to the Court or the Jury trying the Cause the Matter in Dispute be­tween the Parties.”

See, also, the early English ease of Read c. Brookman, 3 T.R. 159, 100 Eng.Rep. 509 (1789).


43. “The term, itself, of ‘Issue’ appears as early as the Commencement of the Year Books, that is, in the first year of Edward II (Year Book, 1 Edw. II, 14), and from the same period, at least, if not an earlier one, the Production of the Issue has been not only the constant effort, but the professed aim and object of pleading.” Stephen, A Treatise on the Principles of Pleading in Civil Actions, c. II, Of the Principles of Pleading, 151 (3d Am. ed. by Tyler, Washington, D. C. 1593). Shipman, Handbook of Common Law Pleading, Editor’s Introduction, 8, in 11 (3d ed. by Ballantine, St Paul 1923).
44. Shipman, Handbook of Common Law Pleading, Editors Introduction, 9 (3d ed. by Ballantine, St. Paul 1923).

14

BASIS OF MODERN REMEDIAL LAW



Ch. 1

decided as far as possible prior to the Trial of the Facts. This was made necessary by the dual character of the Common-Law Tribunal, that is, of the Court, which generally decides Questions of Law, and the Jury, which gen­erally determines Issues of Fact. By this process the Matters on which the Parties dif­fer and the Points on which they agree, are ascertained with precision, and thus the Is­sues over which the Parties are contending are presented for judicial determination. The Pleadings are not, as frequently assumed in popular estimation, an advocate’s address to the Judge or Jury. On the contrary they are the Formal Statements, drawn up by the Counsel of the Respective Parties, of the plaintiff’s Cause of Action or the Defendant’s Defenses, From the clash of assertions are disclosed the points in controversy, the prop­ositions affirmed on one side and denied on the other, on which the decision of the case will turn. Thus, the Primary Function of Pleading, that is, of defining the Issues over which the Parties are contending, is achieved. “The points admitted by either side are thus extracted and distinguished from those in controversy; other matters, though disputed, may prove to be immaterial; and thus the litigation is narrowed down to two or three matters which are the real questions in dis­pute,” ~ on which the case may be judicially tried in the most expeditious manner.


It is a great benefit to the Parties to know exactly what are the Facts remaining in dis­pute, and what Facts the plaintiff must Prove to sustain his Cause of Action or the defend­ant to establish his Defense. The question involved may be reduced to an Issue of Law, in which case it may be decided by the Judge upon Argument, or it may involve a Question of Fact, in which case, it may involve a lengthy Trial by Jury. By separation of Questions of Law from Questions of Fact, the Parties may be saved great trouble and ex­‘5• Odgers, Principles of Pleading and Practice In

Civil Actions in the High Court of Justice, e. 6, 66

(14th ed., London 1952).

pense in procuring evidence of Facts which the opponent does not dispute, and the State may escape the burden and cost of su­pervising the litigation of Immaterial Issues.


The secotul Objective of Pleading is to re­duce Questions of Fact to clear-cut Issues, by eliminating immaterial and incidental mat­ters, and narrowing the case to one or more definite propositions on which the contro­versy really turns, thus serving as a guide to the Court in Rulings upon Offers of Evidence. As the Pleadings define and limit the Proof, so also do they have a bearing upon the Ad­mission or Rejection of Evidence. Thus, if A brings Trespass for Assault and Battery, B Pleads Self-Defense, and A denies the striking in Self-Defense, the issue presented is: Did B strike in Self-Defense? Now, if B offers Evidence that he did not strike A, the Court is in a position to Rule out the Offer of Proof, as such offer has no logical tend­ency to support the defendant’s Plea that he struck in Self-Defense.
The third Objective of Pleading is to notify the Parties themselves and the Tribunal which is to decide between them of the it­spective Claims, Defenses, arid Cross-De­mands of the adversaries. Some Advocates of Reform, irritated by the mischiefs inci­dent to the abuse of technical Rules of Plead­ing, have suggested that the Parties to an Action should come into court without any Notice as to the Complaint or Answer. It is evident, however, that such a System would lead to fraud, oppression and expense in a civilized state where commercial transactions are both numerous and complicated. If, then, Notice is essential, does a mere Gen­eral Notice 40 of the Plaintiff’s Cause of Ac­
4~. Issue Pleading, as opposed to Notice Pleading, prevailed at Common Law, as the chief Objective of Pleading was to reduce the controversy to an issue of fact or or law. Fact Pleading came in with Code Pleading, which emphasizes the need for an accu­rate statement of the facts, while in recent yenrs there has developed what Is known as Notice Plead-

Sec. 3


FUNCTIONS OF PLEADING

15

tion and the Defendant’s Ground of Defense, serve every purpose? Thus, suppose the Plaintiff’s Declaration reads as follows:



“The Plaintiff Alleges that the defendant did not pay a bill of exchange for $50.00.” to whièh the defendant interposes the following

Plea:
“The defendant states that he is not liable on the bill.”


From the Plaintiff’s Statement it could not be determined on the Pleadings whether he had a sufficient Cause of Action or not, and from the Defendant’s Plea, it coUld not be de­tennined whether the defendant denied the acceptance of the bill, or the other legal req­uisites essential to liability; or, assuming their existence, whether the defendant in­tended to set up New Matter such as fraud by Way of Answer; nor whether the Issue was One of Law or of Fact. In such a situa­tion every case would have to be considered by a Jury in order to ascertain that there was no Fact in dispute. It thus appears that the evils of giving no Notice would exist nev­ertheless, expense would be incurred as the Parties would have to come to Trial prepared to Offer Proof on anything relating to the case, although only one matter was in reality in dispute. It seems evident, therefore, that
ing, or merely giving notice to an opponent of the claim which is being asserted.

On Issue and Fact pleading, see Clark, Handbook of the Law of Code Pleading, c. I, History, Systems, and Functions of Pleading, § 11, pp. 56-57 (Cd ed., St. Paul 1047); MIflar, Notabilia of American Civil Procedure 1887—1937, 50 Harv.L.Rev. 1017, 1034 (1937).

For a detailed discussion of Notice Pleading, see ar­ticle by Whittier, Notice Pleading, 31 Harv.L.flev. 501 (1918).

And for a suggestion as to how to resolve the conflict between the various views, see article by Simpson, A Possible Solution of the Pleading Problem, 53 Harv.L,Rev. 169, 187—189 (1939).


See, also, en Notice Pleading, the First Report of her Majesty’s Commissioners for Inquiring Into the Process, Practice and System of Pleading In the superior Courts of Common Law (IBM), 11—14, re­ported In Reppy, Introduction to Civil Procedure, c. I, § 3, p. 29 (Buffalo 1954).

“the defendant is entitled to know what it is that the Plaintiff Alleges against him; the plaintiff, in his turn, is entitled to know what Defense will be raised in Answer.” ~ In support of this view is the statement of Thomas, 3., in the Illinois case of Cook v. Scott,48 who declared: “The province of the Declaration is to exhibit, upon the Records, the grounds of the Plaintiff’s Cause of Action, as well for the purpose of Notifying the De­fendant of the precise character of those Grounds, as of regulating his own Proofs.”


The fourth Function of Pleading is to serve as an index to the respective Counsel as to the points to be proved at the Trial in sup­port of the contentions of their respective clients and in Apportioning the Burden of Proof and Rebuttal as between the plaintiff and the defendant.4° Thus, if A alleges that B stole his horse, and B denies the Allega­tion, A knows that he may support his Gen­
47. Odgers, Principles of Pleading and Practice, c. 0,

65 (14th ed. by Lewis Sturge, London, 1952).


4~’ 6 Ill. (1 Oilman) 333 (1844). See, also, Ohio & 31. fly. Co. v. People, 149 Xli. 663, 36 NE. 989 (1894).
49. Ballantine, The Need of Pleading Reform In Illi­nois, 1 U. of IILLJ3uII. No. 1, 15 (1917).

The Massachusetts Commissioners of 1851 state the purposes of Civil Pleading as follows: “(I) that each party may be under the most effectual influ~ enccs, which the Nature of the Case admits of, so far as he admits or denies anything, to tell the truth, (2) That each party may have notice of what is to be tried, so that be may come prepared with the necessary proof, and may save the expense and trouble of what is not necessary, (3) That the Court may know what the Subject Matter of the dispute is, and what is asserted or denied concerning it, so that it may restrict the debate within just lim­its and discern what Rules of Law arc applica­ble. (4) That it may ever after appear what Sub­ject Matter was then adjudicated, so that no fur­ther or other dispute should be permitted to arise concerning it.” 6 Mass.L.Q. 104 (1921); flail’s Massachusetts Practice (Boston 1851).

As to Functions of Criminal Pleading and the cer­tainty and precision required, see United States v. Crulkshank, 02 U.S. 542, 23 LEd. 538 (1875); 3111-lar, The Reform of Criminal Pleading In Illinois, S JAminst.Crim.L. & Criminology, 337—361 (1917); Millar, The Modernization of Criminal Procedure, 11 J.Am.Inst.Crim.L. & Criminology, 344—367 (1920).

16 BASIS OF MODERN REMEDIAL LAW Ch. I
eral Allegation by Proof that B took any and Subject Matter, it was held by the Court horse, whereas if A had named a black horse, that the Judgment in the First Suit was a with a white fore-front foot, he would have Bar to the Plaintiff’s Second Action. And been limited to Proof of that Particular this same rule applies under the Reformed horse, while B’s Defense would be simplified Procedure in the same manner as at Common by being limited to Defense against taking Law.5

one Specific horse, whereas before he was

The claim of the Law of Pleading to be a

under necessity of being prepared to defend Science must, therefore, be measured by the a charge of taking any horse. And it follows

logically that the Burden of Proof would 51. In Secor v. Sturgis, 16 N.Y. 548, 554 (1858), de­fall on A as he has affirmed that B took his cided under the Code, Strong, 3., Bays: “The Prin­

horse. ciple is settled beyond dispute that a Judgment con­

cludes the Rights of the Parties in respect to the

The fifth Purpose of Pleading is to serve Cause of Action stated in the Pleadings on which it as a Formal Basis for the Judgment. Begin- is rendered, whether the suit embraces the whole

or only part of the demand constituting the cause

ning with the Original Writ, let us suppose of action. It results from this Principle, and the


there is a Charge therein that B is indebted Rule is fully established, that an entire claim, aris­to A in the sum of five hundred dollars. The lug either upon a Contract or from a Wrong, can-

Declaration must contain the same Charge not be divided and made the subject of several

suits; and If several suits be brought for different
in elaborated and Consistent Form, the Proof parts of such a claim, the pendeney of the first may at the Trial must correspond to the Charge be Pleaded in Abatement of the others, and a Judg­in the Originai Writ and Declaration, the ment upon the merits In either wifi be available as

a Bar In the other suits, (Farrington & Smith v.

Verdict must find in accord with the same Payne, 15 Johns. 432 L481] (1818); Philips v. Eerick,

Charge, and finally the Judgment on the Ver- 16 Id. 137 [136] (1819); Guernsey v. Carver, 8 Wen­

diet must be made subject to the same limita- dell 492 (1832); Stevens v. Lockwood, 13 Id. 64-1

(1835).) But it is entire claims only which camiot

tions, in order to be free from attack as go- be divided within this rule, those which are single ing beyond the Scope of the Pleadings. By and indivisible ia their nature. The Cause of Ac’ this requirement of correspondence between tion in the different suits must he the same. The

the Various Pleadings at each Stage of the Rule does not prevent, nor is there any Principle

which precludes, the Prosecution of Several Actions

Proceedings the Common Law secured in upon Several Causes of Action. The holder of sev­Pleadings what we refer to in English com- eral Promissory Notes may maintain an action on position as unity, coherence and emphasis. each; a party upon whose person or property suc­

cessive distinct Trespasses have been committed

The sixth and Final Function of Pleading may bring a separate suit for every trespass; and


is to preserve a Record of the Controversy all demands, of whatever nature, arising out of sep­arate and distinct transactions, may be sued upon
Litigated, which serves as a foundation for

separately. It makes no difference that the Causes

a plea of Res Judicata, which, if sustained, of Action might be united in a Single Suit; the

operates to prevent the relitigation of the Right of the Party In whose favor they exist to same controversy, provided it involves the separate suits is not affected by that circnmstancc,

except that in proper cases, for the prevention of

Same Parties and the Same Subject Matter, vexation and oppression, the Court will enforce a Thus, in the early New York case of Farring- consolidation of the Actions.”



ton v. Payne,5° where A sued B for the con- In general, on the Splitting of Causes of Action see:

version of three bed quilts,—a bed and three Articles: Clineburg, Splitting Cause of Action, 10 Ncb. bed quilts having been taken away—and re- I,.Bu1L 156 (1940); MeNish, Joinder and Splitting

of Causes of Action In Nebraska, 26 Neb.L.Rev. 42

covered, after which he brought a second ac- (1946); Colvin, Injury to Persons and Property—

tion for conversion of the bed, to which B One Action or Two, 2 AIa,t.Rev. 75 (1949).

Pleaded, Former Recovery for the Same Act Note: Pleading—Splitting Causes of Action—Counter­

claim In Court of Limited JurIsdiction, 36 Yale L,J.

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