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1!. 2 Salk-. 1362, 91 Eng.Rep. 564 (1696).

558


LITIGATING THE CONTROVERSY

CK. 26

defendant kept a bull that ran at and injured the plaintiff, but failed to allege that the plain­tiff had knowledge of the bull’s dangerous pro­pensities, the Defect was held not Aided after Verdict, as the Action would not lie unless the master knew of this quality, and there could be no Inteiidment that it was Proved at the Trial, as the plaintiff was under no obligation to prove more than he alleged.’°
(Il) Where There is a Peg to Hang Omit­ted Matter on, but the Matter Inadequately Allcgcd is not Pleaded in such a way as to Become a Part of the Issue.—Where the Ill-pleaded Fact is not Traversed, or otherwise Pleaded in such a way as to becolne a part of the Issue actually produced by the Pleadings, such Fact, not being in Issue, need not be Proved at the Trial. Under such circum­stances the Verdict raises no presumption that the Ill-pleaded Fact was made effective by the evidence produced at the Trial. For example, if in a Declaration in Special As­sumpsit, the Consideration is Defectively Al­leged, and the defendant Pleads the Statute of Limitations, since No Issue is taken on the Fact of Consideration, no Proof is required, and hence a Verdict for the plaintiff does not Aid the Defective Statement of the Consid­eration on the theory that the evidence at the Trial supplied any Omitted Element. Cases of this charactel’ therefore do not fall within the scope of the Common Law Principle of Intendment after Verdict. It may be, how­ever, that such cases may fall within the pur­view of that series of Remedial Enactments known as the Statutes of Jeofails.
THE STATUTES OF JEOFAILS
300. As a result of the English Statutes of Jeofails, beginning in 1340 and extending down to Modern Times, there has been a gradual liberalization of the earlier strict policy against permitting Free Amendments of Pleadings,
19. English: Jackson v. Pesked, 1 M. & 8. 234, 105 Eng.Jlep. 88 (1513); Alabama: Douglas v. Beasley, 40 Ala. 142 (1866); Illlaois: Chicago & A. R. Co. v. Clausen, 173 Ill. 100, 50 N.E. 680 (1898).

AFTER the appearance of Written Plead­ings, and after the proceedings in any given

case were Entered on Record, at Common Law, or prior to the grant of Statutory Au­thority, the Courts would permit no further Amendments. This resulted in many liti­gants losing their cases when they were clear­ly entitled to win as a matter of substance. They were accordingly left without remedy. To meet this situation Parliament gradually began to provide a piecemeal remedy in a series of Enactments now known as the Stat­utes of Jeofails. Most of the ensuing Stat­utes, enacted between the years 1340 and 1705, applied to Errors which called for cor­rection after Trial, but two of them, the Stat­ute of Elizabeth (1585) and the Statute of Anne (1705), applied to the Record before Verdict.
According to Plucknett,2° efforts to im­prove the System of Special Pleading, which tended to become more rigid as time went on, by the Enactment of Statutes of Jeofails, be­gan in the early Fourteenth Century. And Professor Samuel Tyler, in his Preface to Ste~ phen,2’ stated: “No less than Tsvelve Stat­utes, beginning in the Reign of Edward III [1327-4377], and coming down to that of George I [1714—1727], had been passed by Parliament before we separated from Eng­land, to remedy tcchnical inconveniences.”
AMENDMENTS
30L A party will generally be allowed to correct Inaccuracies or Supply Omissions in

his Pleadings by Amendment at any time be­fore the Jury have retired, if he has not been guilty of Ladies in applying for leave to Amend, and if the Amendment does not change the Form of Action, or introduce a New Cause of Action or Ground of Defence, or prejudice the Adverse Party.


20. Pjucknctt, A Concise History of the Common Law, 351 (2nd ed., floeliester, 1951).
21- Stephen, A Treatise on the Principles of Plead­ing in Civil Actions. Preface, (3d Au. cd. by Tyler, Washington. D. C. 1000).

THE Court will generally allow an Amend­ment to correct Mistakes in the Names of the Parties,22 or to strike out Parties Im­properly Joined,23 or bring in Parties Im­properly Omitted, or who have become Nec­essary Parties since Commencement of the Suit,24 or to correct the Pleading as to the Capacity in which a Party Sues or is Sued.25 And an Amendment is frequently allowed in order to Conform the Pleadings to the Proof that has been offered, so as to avoid a Van­ancë, where no prejudice to the Opposite Party can result.


It is always safer to apply for Leave to Amend before Issue Joined, or at least before the Thal has Commenced, for the Court may refuse to allow an Amendment after that time.2° A Party cannot insist upon a right to Amend if he has been guilty of Laches.2 The Court may, however, in the exercise of its discretion, allow Amendments at any time before the Jury have retired, if it properly protects the Other Party,28 and some Amend-merits, as Amendments to Conform to Proof, may be allowed after Verdict, and even after Judgment.2°

22. Porter V. 1-lildebrand, 14 Pa. 129 (1850).



23. Miller v. Polloek, 99 Pa. 202 (1881).

24. Alabama: Steed v. McIntyre, 68 Ala. 407 (1880);

Georgia: Braswefl v. McDaniel, 74 Ga. 319 (1884).


25. Georgia: nines v. Rutherford, 67 Ga. 606 (1881); i\Iiehigan: Sick v, Michigan Aid Ass’:], 49 Mich. 50, 12 N.W. 905 (1882).
28. Ritehie v. Van Gelder, 9 ExeL. 762, 156 Eng.llep.

326 (1854).
27. Massachusetts: Dawes v. Gooch, 8 Mass. 488

(1812); New York: Saekett v. Thompson, 2 Johns.

(N.Y.) 206 (1807); Ohio: Fowble v. Rayberg, 4

Ohio 45 (1829); Virginia: Elder’s Ex’rs v. Harris,

76 Va. 187 (1882); Federal: Jones v. Welling, 16

Fed. 655 (D.C.S.D.N.Y.1883).


28. Mississippi: Barker v. Justice, 41 Miss. 240 (1866); Wisconsin: Hill v. Chiprnan, 59 Wis. 211, 18 NW. 160 (1884).
29. McKinney v. Jones, 55 WIs. 39. 11 N.W. 606 (1882), and 12 N.W. 381 (1882). See, also, 31 Cyc.

393—407.


Amendments to Ciwn-ge the Form of Action UNDER the Common Law a plaintiff was

not permitted to Amend his Declaration if it operated to change the Form of the Action, as from Assumpsit to Covenant, or from Case to Trespass.3° There was a sensible reason for such a holding. The Rule was that the Charge in the Declaration had to conform to the Charge in the Original Writ as is­sued out of Chancery. If there was a Vari­ance between the two, it was ground for a Plea in Abatement. Thus, if A sued out an Original Writ in Debt, his Declaration was but an Amplification of the Charge of Debt as set forth in the Writ. Naturally, an attempt to Amend his Declaration to Cove­nant would be Error, as Covenant did not fall within the scope of the Charge of Debt as Stated in the Original Writ. Nor could such a Defect be waived by agreement of the Par­ties.31 Even where an Amendment would otherwise be permissible, it should not be al­lowed if it would result in prejudice to the Ad-


30. Alabama: Mahan V. Smitherman, 71 Ala. 563 (1882); Maine: Flanders v. Cobb, 88 Me. -188, 34 A. 277 (18941); Rhode Island: Slater V. Fehlherg, 24 RI. 574, 54 A. 383 (1002).
In some States the Rule is changed by Statute, or is not recognized. See Redstrake v. Cumberland Slut. Fire Ins. Co., 44 NIL. 294 (1882), where an Amend­ment was allowed, changing the Form of Action from Assumpsit to Covenant: Connecticut: North

v. Nichols, 39 Conn. 355 (1872); I)elaware: I’hila­delphia, B. & W. R. Co. v. Gatta, 4 Boyce (Dcl.) 38, 85 A. 721 (1916); New ilanipsl~ire: Morse v. Whitcher, 64 Nil. 591, 15 A. 207 (1888).


An Amendment changing the legal theory or basis of the claim is sometimes held to set up a New Cause of Action. Allen v. Tuscarora Val. It. Cc., 229 I’a. 97,78 A. 34(1010).
On the effect of a Departure from Law to Law, see

Article by Scott, The Progress of the Law, 1918— 1019, Civil Procedure, A]uel]d]Ilent of l’lcadings,



33 Harv.L.Rev. 236, at 23 (1910); Notes: Pleading

—Amendment—Federal Employers’ Liability Act— Limitations—Defenses, 3 Minn.L.Ilcv. 59 (1918);

Pleading—Amendment—Departure from Law to

Law, a Minn.L.Rev. 132 (1919).
31. Scott, Fundamentals of Procedure in Actions at Law, c. V, Amendments and Jcofails, 154 (New York, 1922).

See. 301

AIDER AND AMENDMENT

559


560

LITIGATING THE CONTROVERSY

Cli. 26

verse Party.32 And always, when it is allowed, the Court may and should impose such terms as will fully protect the Adverse Party, such as payment of Costs of the Application, and, in some cases, Costs of the Whole Suit up to the time of the Amendment.


The Situation Under Modern Law as to Amendment Changing the Form of Ac­tion-

IN England, as earlier observed, as long as the Original Writ operated, an Amend­ment changing the Form of Action was fatal. But with the abolition of the Original Writ in 1833,~~ Amendments were permitted in the discretion of the Court. In New Hamp­shire, in the case of Stebbins v. Lancashire Ins. Co.,34 the Court followed this liberal Eng­lish view, but in the Several States of the United States, despite the fact that Original Writs were not used, Amendments chang­ing the Form of Action have been frequently disallowed.35


With the abolition of the Forms of Action after 1848, all reasons for observing the Rule prohibiting Amendments changing the Form of Action ceased to exist, and it would seem that the Code States might have followed the liberal view in pennitting amendments. But according to Professor Scott, “this rule was replaced by one which is even worse.” It was held that an Amendment could not be allowed if it changed the Cause of Action.

“This is in many ways a more sweeping limi­tation upon the power of the Court than the Common-Law Rule.” ~ Fortunately, this de­parture from the ways of Good Pleading was


32. TUlle V. Ege, 82 Pa. 102 (1876).
33. 3 & 4 Wm. IV, c. 42, 33, 73 Statutes at Large

272 (1833).
3’. 59 N.H. 143 (1879); Merrill v. Perkins, 59 N.H.

343 (1879).
35. 1 Eney.Pl. & Pr. 547; Note: Pleading—Amend­ment—Discretion, 63 U.Pa.L.Itev. 61 (1914).

30. Scott, Fundamentals of Procedure In Actions at

141w, e. V. Amendments and Jeofalls, 155 (New York

1922).

met by Statutory Repudiation in Several States.37 In some States, under a liberal pol­icy of Amendment, Amendments were per­mitted by which an Action at Law could be changed into a Suit in Equity, or a Suit in Equity into an Action at Law. This was provided for in Wisconsin under its Code.38 As Winslow, J. said, in Jilek v. Zahi? in re­ferring to the purpose of the Wisconsin Stat­ute: “The beneficent effect of this provision can hardly be overestimated. It means that ft will no longer be necessary to kick the plaintiff out the back door of the Courtroom (with Costs) in order that he may re-enter by the front door in a different garb.”


Amendment and the Statute of Limitations IF an Amendment imtroduces into the Dec­laration a New and Different Cause of Action from the One Originally Stated, it is subject to a Plea of the Statute of Limitations, if the Statutory Period had run against the claim. And this is true although the Statute had not run at the time the Original Action began. But obviously Amendments should be allowed which do not introduce a New Cause of Action, but where the Allegations merely amplify or vary the claim set up in the Original Count, md this is true even where Essential Elements are added.’°
The ‘question of the running of the Statute of Limitations and the right to Amend the Declaration thereafter should never turn up­on the question whether the Declaration states a Good Cause of Action. The correct test should be whether the Commencement of the Action constituted fair notice of the assertion of that particular claim.
37. See N. J. Laws, 1912, e. 231; Wis.Stats. § 283Gb (Laws 1915, c. 219, ~ 2).
38. Wis.Stats. 2836b (Laws 1915, e. 219, ~ 2).
39- 162 WIg. 157, 101, 155 N.W~ 008, 810 (1916).
40. Carlin v. City of Chicago, 262 Ill. 564, 104 N.E.

905 (1915); Foster v. St.. Luke’s Hospital, 191 III.



94, 60 N.E. 803 (1901).

Sec. 302


AIDER AND AMENDMENT

561


But the Law in Illinois has been otherwise.

The Statute of Limitations continued to run
in spite of a Defective Declaration. In the case of Walters v. City of Ottawa,41 an Ac­tion was brought against the City for per­sonal injuries due to a defective sidewalk, in which the Declaration failed to state that Formal Notice had been given as required by Statute. The City Pleaded the General Issue, but later withdrew this Plea and filed a Demurrer, which was sustained. There­upon the plaintiff Amended her Declaration

by adding to each Count Averments showing the giving of the Notice in due season, Now, the City again Pleaded the General Issue and added a Plea of the One-Year Statute of Lim­itations. A Verdict of $1,000 was rendered against the City, but on Review by the Su­preme Court, the Judgment which had been Entered was Reversed, the Court holding that an Amendment to the Declaration sup­plying such Essential Averments more than a year after the injury was open to a Plea of the Statute of Limitations.42


By the weight of authority, to supply one of the Essential Elements of a Cause of Ac­tion, does not constitute a New and Sepa­
41. 240 Ill. 259, 88 N.E. 651 (1909). See, also, Brad­ley v. Chicago-Virden Coal Co., 231 111. 622, 83 N.E. 424 (1907); Allis-Chalmers Mfg. Co. v. City of Chi­cago, 297 III. 444, 130 N.E. 736(1921).
The Statute of Limitations, under this view, continues to run until a good Cause of Action with all Es­sential Facts is stated, and, if at that time, it has run, it will operate as a Bar to a New Cause of Action stated in the Amended Count, Allis-Chal­mers Mi g. Co. v. City of Chicago, 297 Ill. 444, 450, 130 N.E. 736, 738 (1921).
42. This case has been severely criticized by Dean Wigmore, in an Editorial Note, Civil Procedure and Football—Defeating a Valid Claim by Pleading and then Demurring, while the Statute of Limitations Buns, 4 Ill.L.Rev. 344 (1909). See, also Proceedings of the Illinois Bar Association, 310, 314 (1909). And eompare Enberg V. City of Chicago, 271 IlL 404, 111 Nfl 114 (1916); Comment: Practice—Statement of Claim in the Municipal Court, 11 Ill.L.Bev. 117 (1916); Note: Pleading—Amendment, 64 U.Pa.L. Rev. 640 (1916).

rate Cause of Action. And Amendment after the Limitation Period is permissible, al­though the Declaration was Demurrable, where it perfects the Same Cause of Action Originally Pleaded. That is the only sort of Amendment that is really important.43 It is well settled that the Statute of Limitations is no Bar to an Amendment of the Declara­tion as to non-essentials.4~


STATUS OF AIDER AND AMENDMENT— UNDER MODERN CODES, PRACTICE

ACTS AND RULES OF COURT
302. Aider and Amendment, in both the State and Federal Courts, is now largely a mat­ter of statutory regulation. In General, the Statutes provide for Amendments Without the Leave of the Court, or as a Matter of Course, and for Amendments With the Leave of the Court.
UNDER Modern Codes, Practice Acts and Rules of Court, Aider and Amendment, in both the State and Federal Courts, is now largely a matter of Statutory Regulation.45 The Statutes, in general, provide for Amend-
43. Neubeclc v. Lynch, 37 App.D.C. 576 (1911). See,

also, eases collected in 33 L.R.A.(N.S.) 196 (1911);

47 L.It.A.(N.S,) 932 (1913); Alabama: Alabama

Consol. Coal & Iron Co. v. fleald, 154 Ala. 580, 45

So. 686 (1907); Iowa: Lammers v. Chicago Great

Western R. Co., 187 iowa 1277, 175 NW. 311

(1919); North Carolina: Ln,siter v. Norfolk & C.

B. H. Co., 136 N.C. 89, 48 SE. 642 (1904).


And, see further, Notes: Pleading—Amendment of

Declaration After Statute Has Bun—~Whether al

Amendment from Com,non Law Action to Statutory

Action on the Same Facts is Permissible, 30 I’Iarv.

L.Rev. 294 (1917); Pleading—Limitation of Ac­tions—Amendments Stating New Cause of Action,

29 Yale L.J. 685 (1920); Limitation of Action— Pleading—Amendments lIe-Stating Cause of Action,

5 Iowa Law Bull. 275 (1920).
44. Peering Co. ‘cc Barzak, 227 III. 71, 81 N.E. I

(19Cr): Lake Shore & M. S. 1ty. Co. v. Enright, 227

Ill. 403, 81 N.E. 374 (1907); Ames, A Selection or

Cases on Pleading, 242, 243. 244 note (Cambridge,



Mass. 1905).
45. Clark, Handbook of the Law of Code Pleading, e, 12, Amendment and Aider of Pleadings, 115, The Code Provisions, 708 (24 ed., St. Paul 1947).

562


LITIGATING TILE CONTROVERSY

Ch. 2~

ments Without the Leave of the Court, or as a Matter of Course, and for Amendments With the Leave of the Court.4°


Amendments With or Withont Leave of the Court
UNDER the Code Provisions, as exempli­fied by Rule 3025(a) of the New York Civil Practice Law and Rules, a Pleading, without Leave of the Court, may once be Amended by the Party as “of course,” within the time fixed in the Rule. But, under a number of Codes, if it appears that the Amendment was for the purpose of delay and that the Adverse Party will be prejudiced, the Amended Plead­ing may be stricken out, on such Terms as the Court may deem just. And Some State Stat­utes have provided in effect that the Court may permit Amendment of Any Pleading by addng or striking out the irnine of Any Par­ty, or by correcting a Mistake in any other respect; or, provided the Amendment does not substantially change the Claim or De­fense, by Conforming the Pleading to the Facts proved.47
Federal Rule 15(b) provides that when Issues not raised by the Pleadings are tried by express or imphed consent of the Parties, they shall be treated in all respects as if they had been raised in the Pleadings. Moreover, even After Judgment, a Party may upon Mo­tion Amend his Pleadings to Conform to the Evidence, and failure to so Amend does not affect the result of the Trial of these Issues. And where there is an Offer of Evidence which is objected to at trial on the ground that it is not within the Scope of the Issues as Made by the Pleadings, the Court may al­low the Pleadings to be Amended where the Merits of the Action will be subserved and the Objecting Party fails to satisfy the Court
ES. Jbl&

that the admission of such evidence woult prejudice him.48


Certain States attempted to Regulate th Form of Amendments. Oregon, for example required an Amended Pleading to be com plete in itself, aside from the Original Plead~ ing; some States required Motions to be in writing and to specifically set forth the words sought to be inserted or stricken out; and in at least one State Amendment was not permitted to be made by erasure or inter­lineatlon, a separate paper being required to be filed, and when so filed, to constitute with the Original but a Single Pleading. In the absence of statutory requirement, the Form of an Amendment lies within the discretion of the Court In Some States it was required that the Application for Amendment be ac­companied by Affidavit stating the reasons therefor.51
Amendments Changing the Cau~se of Action

AS we have seen in the earlier discussion of this subject as it stood at Common Law, with the abolition of the Original Writ in England in 1833 and the Forms of Action in New York in 1843, the reasons for not per­mitting an Amendment changing the Form of Action ceased to operate.


In the Code States where the Statute Regu­lating Amendment does not in specific terms restrict the power, it would appear that such unrestricted power should extend far enough to permit an Amendment changing the Cause of Action. The situation is, how­ever, more restrictive where under the Stat­ute a Court has power to Conform the Plead-
48. Pot a citation of State Statutes, ace Clark, Hand­book of the Law of Code Pleading, c. 12, Amend­ment and Aider of Pleadings, § 115, The Code Pro­visions, 712 (2d ed., St. Paul 1947).
49. Oregon Comp.Laws Ann., 1940, 1—bOO.
~O. Indiana Stat.Ann., (Burns), 1983, § 2—1069.
Dl. Bedman Imp. Co. v. ICrabo, 185 AppDLv. $82, III N.Y.S. 617 (1918); Copeland v. Hugo, 23-2 .&~p.Div. 229, 207 NYC. 466 (1925).

-47. Ark.Pig.Stat., Pope. § 1463 (193V, Is an example

of such a Statute.

ings to the Proof only “when the Amend­ment does not change substantially the Claim or Defense.”


In the Federal Courts, first, a liberal view as to Amendments was taken.52 Sec­ond, due to the case of Union P. 1?. Co. v. ~y7er;~ in which an employee of a railroad was not permitted to shift his claim for Dam­ages from the Common Law to a Kansas Statute, a stricter view was assumed, the Court indicating that a “Departure from Law to Law” was not permissible. Third, in the more recent case of Missouri, K. c~ T.

H. Co. v. Wulf,~ the trend again turned in the direction of liberality, where a Claim Under a Kansas Statute was, as a result of Amendment, converted to a Suit under the Federal Employers’ Liability Act. In­stead of finding a New Cause of Action, the Court said the change was merely in Form and Not in Substance, In the process of development, the Federal Courts made clear that they had abandoned the restrictive “Law to Law” rule, and when the Federal Rules of Civil Procedure were adopted, they contained no such restriction.~ It may be said, therefore, that the earlier policy of re­stricting the Power of Amendment has lost favor, with the Courts generally accepting the broader concept of the Cause of Action as


consisting of a Group of Operative Facts. The “Law to Law” test was abandoned in New York as early as 1872,~ and Other States have followed her leadership.57 New York
52. Chapman v. Barney, 129 U.S. 677, 9 S.Ct. 428,

32 L.Ed. 800 (1889).


53. 158 U.S. 285, 15 S.Ct. 877, 39 LEd. 983 (1855).
54. 226 U.S. 570, 33 S.Ct. 135, 57 LEd. 855 (1013).

55. Clark, Handbook of the Law of Code Pleading,

e. 12, Amendment and Aider of 1’Ieadings, § 110,

Amendments Changing the Cause of Action, 715,

710, 720 (2d ed. St. Paul 1947).
58. Brown v. Leigh, 49 N.Y. 78, (1872). Cf. also, Wat­son v. Rushmore 15 Abb.Pr.(N.Y.) 51 (1862).
57. Ohio: Raymond v. Toledo, St. L. & K. C. H. Co.,

57 Ohio St. 271, 48 N.E. 1093 (1897) Oregon: Vol.

lock v. Lumbermaas Nat. Bank of Portland, 86 Or.

563
also led in establishing a liberal rule as to Amendments by a defendant, the Court in Bowman v. DePeyster,TM referring to the greater liberality afforded to Amendments by a defendant at Common Law, declaring:

“The reason for this distinction was, that the plaintiff, if he had Another Cause of Action, could sue upon it afterward; while a defend­ant had to avail himself of his Defense in the Action brought against him, or he might lose the benefit of it.”
Ar,wndinents and the Statute of Limitations

SOME of the State Courts take the view that where an Amendment to the Complaint sets up a New Cause of Action, and in the meantime the Statute of Limitations has run against such Action, the Action is Barred as the Amendment does not relate back.59 Oth­er State Courts take the view that such an Amendment is merely an Amplification of the Same Action, provided it refers to the same Group of Operative Facts, broad enough in scope to support the New Cause of Action. Changes in legal theory should be ignored in determining the Issue. Un­der the Federal Rules,6° unless there has been a material change in the Operative Facts, an Amendment should be allowed.6
324, 108 P. 637 (1917): South Carolina: Colt Co.

V. K~er, 131 S.C. 78, 120 SE. 520 (1925) Mallard

Lumber Co. v. Carolina Portlaad Cement Co., 134

S.C. 228, 132 SE. 014 (1926).


58. 2 Da]y (N.Y.) 203. 208 (1807).

59. Hughes v. Gaston, 281 Mass. 292, 183 N.E. 752 (1932); Capps v. Atlantic Coast Line B. Co., 183 NC. 181, 111 SE. 533 (1922).
On the relation back of Amendments see, Illume & George, Limitations and the Federal Coni’ts:

Relation Back of Amendment, 49 Mich.L.Bev. 937

at 957 (1951).
60. Federal Rule of Civil Procedure 15(c), Title 28, U.S.C.A., reads in part as follows: ‘Whenever the claim or defense asserted In the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original ploading, the amendment relates back to the date of the original pleading.”
61. For a detailed statement comic-era lug Ap.iend,nouts and the Statute of Limitations, see Clark, iLiad-

Sec. 302 AIDER AND AMENDMENT



Ch. 26
:e would

Ilate the ?xample, be corn U Plead to be in te words ~° and ~/as tot r inter­Jired to tte with In the e Form cretion ?quired be ac­~eason~



Action

ussion 1 Law, Irit in ion in t per­Form

Regu­terms

that dfar Oging how-Stat-lead­hand­nend­Pro­



564

LITIGATING Tilt CONTROVERSY

Ch. 26

Aider

THE Codes have not made great changes in the Common-Law Doctrine of Aider in its Various Forms, as previously discussed. Thus, the principle enunciated in Birooke v. Broolce,°2 the famous hook Case, that a De­fect in the Plaintiff’s Declaration may be cured or supplied by a Subsequent Plea, ap­plied under the Codes,~ although it has been qualified in Some States by the Rule that a Defect cannot be supplied by a Mere Denial.~


When we come to Aider by Verdict, it may be said that for most part the Common-Law Rules still prevail. Thus, the famous, but not very enlightening Rule that a Defectively Al­leged Cause of Action may be cured by Aider, but not the Statement of a Defective Cause of Action, still prevails, In general, however, mere Defects in Form are waived by a failure to Move or Demur. Defects of a more seri­ous character may be waived if not raised until after Verdict or Judgment. But, as Judge Clark observes, “if a System of Writ­ten Pleadings is to be enforced, there will necessarily remain a Class of Cases where the Court will feel that the Pleadings have not served their purpose of bringing out the Cause of Action even in a general fashion.” 65
book of the Law of Code Pleading, e. 12, Amendment and Aider of Pleadings, 118, Amendments antI the Statute of Limitations, 729—734 (2d ed., St. Paul 1947).
62. 1 Sid. 184, 82 Eng.Rep. 1046 (1004).

Variance

TIlE situation where there is a Variance between the Allegations in the Complaint and the Proof at the Trial, is now covered in the Codes by a Statutory Provision, of which an example is Rule 3025(c) of the New York Civil Practice Law and Rules, which pro­vides: “Tile Court may permit Pleadings to be Amended before or after Judgment to Conform them to the Evidence, upon such terms as may be just including the granting of costs and continuances.”


Defective Pleadings Aided by Statute

THE related Section 2001 of the New York Civil Practice Law and Rules, covering Mis­takes, Omissions, Defects and Irregularities in Pleading, provides: “At Any Stage of an Action, the Court may permit a Mistake, Omission, Defect or Irregularity to be cor­rected, upon such terms as may be just, or, if a substantial right of a party is not preju­diced, the Mistake, Omission, Defect or Ir­regularity shall be disregarded.”


Supplemental Pleadings

SUPPLEMENTAL Pleadings, as provided for in Statutory Provisions, are usually re­stricted to a Statement of Facts which oc­curred after the Filing of the Original Plead­ing by the Party. In this sense such Plead­ings, strictly speaking, are not Amendments. But they may well fall within this class under those Code Provisions which permit Supple­mental Pleadings to set forth Facts which ex­isted, but of which the Pleader had no knowl­edge, when the Original Pleading was Filed. In any event, the Allowing of such Plead­ings, like Amendments, is largely a matter for the discretion of the Court, and the meas­ure of their allowance ought to be whether they result in general in the Furtherance of Justice.°6


66. Per a detailed statement concerning Supplemental Pleadings, see Clark, Handbook of the Law of Code Pleading, e. 12, Amendment and Alder of Plead­ings, ~ 121, Supplemental Pleadings, 141—744 (2d ed, St.. Paul 1947).

63. Arkansas: Thompson v. Jacoway, 97 Ark. 508,

134 SW, 955 (1911); Conaectieot: Vickery v. New

Lender’ Northern B, Co., 87 Conn. 634, 89 A. 277

(1914); IndIana: Lux & Talbott Stone Co. v. Don­aldson, 162 ImI. 481, 68 N.E. 1014 (1903); Massa­chusetts: Slack v. Lyon, 9 Pick. (Mass.) 62 (1829);

Missouri: City of Maysville v. Trnex, 235 Mo. 619,

139 SW. 390 (1910); Montana: Burley v. Great

Falls Baseball Ass’n, 59 Mont. 21, 195 P. 559 (1921);

Federal: United States v. Morris, 10 Wheat (U.S.)

246, 6 LEd. 314 (1825).


64. Seofleld v. Whltelegge, 49 N.Y. 250 (1872); Took­er v. Arnoux, 76 N.Y. 397 (1879).
65. Clark, Handbook of the Law e~f Code Pleading, c. 12, Amendment and Aider of Pleadings. ~ 119, Aider by Verdict, 737 (2.1 ed., St. Paul 1947).

Sec.


CHAPTER 27
RETROSPECTIVE MOTIONS1

The Form, Tenor and Effect of the Verdict.

Matter of Record Versus Matter of Exception.

The Motion for a New Trial.

The Motion for Venire Facias De Novo.

The Motion in Arrest of Judgment.

The Motion for Judgment Notwithstanding the Verdict.

The Motion for Repleader.

Status of Retrospective Motions Under Modern Codes, Practice Acts and Rules of Court.



THE FORM, TENOR ANP EFFECT

OF THE VERDICT
303. As the Retrospective Motions for a New Trial, for Venire Facias De Novo, for Ar­rest of Judgment, for Judgment Notwith­standing the Verdict, and for a Repleader, come after Verdict and before Judgment, it is essential to understand that Judgment does not immediately follow Rendition of a Ver­dict. It is suspended for a short period of time to permit the Losing Party at the Nisi Prius Trial to examine the Pleadings in order to determine whether the Matters Alleged by the Prevailing Party are sufficient to sustain a Judgment on the Verdict, and to examine the Conduct of the Trial with reference to rulings of the Court and other conduct which might invalidate the Verdict.
1- in general, 01) the subject of the Retrospective Motions, see:
TreatIses: 2 Tidd, The Praetiee of the Court of King’s Bench in Personal Actions, e. XXXVIII, of New Trials; and Arrest of Judgment, &e., 813—840 (Philadelphia, 1807); Ames, A Selection of Cases on Pleading at Common Law, c. vii, Motions Eased on the Pleadings, 26~—299 (1st ed. Cambridge, 1875); Stephen, A Treatise on the Principles of Pleading in Civil Actions, c. I, Of the Proceedings in an Action, 124—129 (3d Am. ed. by Tyler, Wash­ington, I). C., 1900); Gould, A Treatise on the Prin­

ciples of Pleading, Pt. II, Procedure, c- V, Arrest of Judgment and Repleader, 151—175 (6th cit by Will, Albany 1909); Shipman, Handbook of Corn-



-mon-Jaw Pleathng, C. XX, Objections to Defects During or After Trial, 526—537 (3d ed. by Ballantine,

“WHEN it is said, as it must be said con­cerning four of the five Retrospective Mo­tions, that the Motion goes only upon the Rec­ord, what is meant is that in the consideration of that Motion the Court can look only at the Common Law Record, the Pleadings, the Process and the Verdict, all entered upon the Roll; and matters occurring at the Trial are not to be taken into account in Judgment up­on that Motion.”—Keigwin, Cases in Common Law Pleading, Bk. II, The Rules of Pleading, XVIII, Retrospective Motions, 768 (2d ed., Rochester 1934).


Where the Pleadings have terminated in a single, clear-cut, well-defined, material Is­sue of Fact and the Jury has Returned a
St. Paul 1923); Keigwin, Cases in Common Law

Pleading, e. XvIIT, lletrospeetive Motions, 767—775

(2d ed., Rochester 1934); Millar, civil Precedure of

the Trial Court in Historical Perspective, c. XIX,

Trial by Jury, ~ ~, The Motion in Arrest and Its

Congeners, 323 (New York 1902).


Articles: Carlin, Remittittirs and Additurs, 40 W.Va. L.Q. 1 (1942) ; Riddefl, New ‘rrials in i’resent Practice, 27 Yale L.J. 353 (1918).
Note: Judicial Administration: Power of the Trial Court to Reduce Excessive Damages, IS Iowa L.Rev. 404 (1933);
Comments; Practice and Procedure—Po~ver of the

Courts to Increase Inadequate verdicts, 32 Mich.L.

Rev. 538 (1934); Correction of Damage Verdicts by

Remittitur and Additur, 44 Yale L.J. 318 (1934).



303.

804.


305.

306.
807.

808

309.


aio.

565


566

LITIGATING TUE CONTROVERSY

Ch. 2


Verdict on that Issue, it would seem that a Judgment according to the Verdict should ordinarily be Entered.2 Frequently, how­ever, an Error by Either One or Both Par­ties, prevents a presentation of the Issue on the Pleadings in such a manner so as to make possible a decision of the controversy, or it may be that an Error on the Part of the Court may result in a failure to correctly determine the Issue as made by the Plead­ings. Thus, for example, if A sues B in Case for Slander, alleging that B spoke of and con­cerning A, stating that A is a liar, A is not entitled to recovery, even though a Jury finds the Facts as A alleged, if the alleged state­ment is derogatory language which, as a Mat­ter of Substantive Law, is not actionable even ii proven. And if, by Way of Defense, B al­leges that he was merely repeating what someone else said, this Fact, if true, consti­tutes No Defenre as a Matter of Substantive Law. In either case a Verdict by the Jury would not constitute a sufficient basis to war-
2. But ,rnch was not the case, as Tidd explains. lie declared:
‘‘After a Genera I Vera et, or upon a IV St of Inquiry, oith Or o,, Porn t, :-ror or .1 ,algni ant by Do fi, ru I, it is incumbent on the prevailing party to entet- a Rule for Judgment Ni.si Cause, en the J’osfeu or Jnq,,isi­lion, with the clerk of flue Rules, This hub expires in four dare cretin cc nfl ox- it is cuter. 1: trial Rot, -

or any other tin y eu ~~-hieh the Court sloth not sit is ii ot reclnn]Ied one of the four days, unites I-he Ibilt 10 entered on the mist day of tile loijui. 01’ w I Inn fiuni- 1:ii.—u nriter; diu-iu’.~ vim-li four days, it is the practice to enter these rules, as of tire last (lay cc the torro nail at Ill U expiration of four days exclusive nun or encoring such rule, if no suflieieu,t cans-p he shown to the eon) ‘a,’v,jnlg— merit n’.ny he en I ered. Tile flu Ic for .Tiidg,nent ought not to be entered before the day in bank: and it is not necessary if the plaintiff he nonsuited, for in that ease Judgment may be entered immediately after the day in hauls.


“\VII lila the time limited ly ‘he Rule, the nnsuct-es-sIul party may move the Court for a New Trial, or In­quiry; or in Arrest of Judgment; or for Judgment Non Obstante Verodkto, a Repleader, or Vc;tii’c Fades DC icorm” 2 The Practice of the Court eL’ King’s Boneh, in Personal Actions, e XXXVIiI, Of New Trials; and Arrest of Judgment, 8cc. 813 (Philadelphia 1807).

rant a Judgment. As a Verdict is therefor not necessarily decisive of the Cause, th Court, in considering an appropriate Motior should thoroughly examine the Pleadings fo:

the purpose of ascertaining whether the Fact:

alleged by the victorious Party will sustain Judgment in his favor. And in some caset the conduct of the Trial may have to be con­sidered, particularly with reference to th Rulings of the Court on offers and rejections of evidence, some of which may operate to invalidate a Verdict. To meet these even~ tualities and to give an opportunity for the losing party to examine the Record and the Trial, at Common Law the Entry of the Judgment was delayed. This resulted in Eng­lish Practice from the circumstance that Nisi Prius Trials were usually held out on the Circuit away from Westminster, during a Vacation of the Court, and therefore the Record Roll, with the Entry of the Ver­dict, could not be presented to the Full Court for Judgment, until after the Commencement of the Next Term. Within four days after the Court met En Bane at Westminster. the Losing Party at the Nisi Prius Trial was permitted any Motion seeking to avoid the Judgment which in the normal course of affairs would logically follow upon a Ver­dict.3 A similar Rule has usually been fol­lowed in the American Courts, except where changed by Rule of Court or Statute.-1 The effort to avert the Entry of Judgment on the Verdict took the Form of One or More Motions, which, as Professor Keigwin ob­serves, “because they look backward over the course of the proceeding, may be called Re­trospective Motions,” ~ which were Five in
3. Keigwin, Cases in Common Law Pleading, Bk. II, The Rules of Pleading, e. X~IH, Retrospective Motions, 160, Effect of the Verdict, 767, ii. 1 (2d ed-, Rochester 1934),
4. TrueR v. Legg, 32 Md. 147 (1870); Hutehinson I’. Brown, 8 AppD.C. 157 (1896).
5. Keigwin, Cases in Common Law Pleading, Bk. II, ‘The Rules of Pleading, c- XVIII, Retrospective Mo­lions, 738 (2d ed., Rochester 1934).

number, the Motion for a New Trial, the Motion for Venire Rae-las de Novo, the Mo­tion in Arrest of Judgment, the Motion for Judgment Notwithstanding the Verdict, and the Motion for Repleader.


With the exception of the First Motion, all proceed upon the theory of taking advantage of some Defect Apparent Upon the Face of the Common Law Record. The Motion for a New Trial seeks to reach Errors which lie Outside that Record, and which can be shown

without reference to the Roll.



MATTER OF RECORD VERSUS

MATTER OF EXCEPTION
304. Four out of five of the Retrospective Motions are addressed to Errors Apparent Up­on the Face of the Common-Law Record. The

• Common-Law Record consists of the Process, the Pleadings, the Verdict and the Judgment. After Judgment, such Errors were Reviewable

by Writ of Error. Errors which occurred at the Trial were not part of the Common-Law Record, and could be Reviewed by a Motion for a New Trial, after Verdict and before Judg­ment; by Statute, such Errors could be Re­viewed after judgment by incorporating them into the Record by means of a Bill of Excep­tions. It was therefore essential to keep clear­ly in mind the distinction between Matter of Record and Matter of Exception.
UNDER the ancient practice, the Proceed-ings in a litigated case were Entered upon

the Parchment Roll, and when this was

completed, the end product became known as
the Common-Law Record. It consisted of Four Parts, the Process, which included the

Original Writ and the Return of the Sheriff, by which the Court acquired Jurisdiction over

the defendant; the Pleadings, presented by the Parties in the prescribed order to develop an Issue of Law or of Fact, and which includ­ed the Declaration and all subsequent Plead­ings, together with the Demurrers, if any; the Verdict; and the Judgment, These Four Elements formed the Common-Law Record, but it should be observed that at the point where the Retrospective Motions come into

567
play, the Record has not been developed be­yond the Stage of Entering the Verdict upon the Roll.


At this point it should also be recalled that between the time when the Pleadings Termi­nated in an Issue, which Joinder in Issue was duly Recorded on the Parchment Roll, and the time when an Entry of the Verdict was made, nothing was Recorded on the Parch­ment Roll. The reason for this was that be­tween the Joinder of Issue and the Rendition

of the Verdict, the Trial takes place, and

what occurs during this Trial does not Appear upon the Face of the Common-Law Record. Thus, Offers and Rejection of Evidence, the Court’s Instruction of the Jury, or its Refusal to Instruct as requested by Counsel, or any Misconduct Connected with the Trial, such as Prejudicial Remarks on the Part of the Court, and the like—that is—any Error that occurs at the Trial—cannot be corrected by resort to the Common-Law Record because not Ap­parent Upon its Face. Such Errors were pre­served only in the notes made by the Presid­ing Judge, or in his memory, and were review-able, after Verdict and before Final Judg­ment, by a Motion for New Trial made before the Court En Bane at Westminster, within four days after the Commencement of the Next Term following the Rendition of the Verdict. As each of the Judges of the Court had Motions of a similar character coming up for decision from the Trials over which they had presided, the natural inclination of each Judge was to support the Rulings of his broth­er Jurists, and thus Overrule the Motion for a New Trial. Furthermore, Errors that oc­curred at the Trial were not Reviewable after Judgment on Writ of Error, because Not Ap­parent on any one of the Four Parts of the Common-Law Record. To remedy this De­fect, Parliament enacted Chapter 31 of the Statute of Westminster II in 1285,6 which



provided for Review of such Errors through

4

Sec. 304 RETROSPECTIVE MOTIONS



Ch. 27
therefore tuse, the Motion dings for the Facts iustain a

tie cases

be con­? to the ejections ierate to se even-for the and the of the


I in Eng­hat Nisi on the Luring a fore the he Ver­ill Court acement ys after m inster, is Trial to avoid course

i a Ver-­een fol­t where

i.1 The ment on ir More Null oh­)ver the led Re-Five in
Bk. II,

ospeetive n~ 1 (2d

ilason v.

Bk. II,


live lEo-

13 Edw. L, c. 31, 1 Statutes at Large 2013 (1255).

568

LITIGATING THE CONTROVERSY

Ch. 27

the use of is-hat came to be known as a Bill of Exceptions.~


Thus, it appears that in four out of five Ret­rospective Motions, the Court is permitted to consider only Defects Apparent Upon the Face of Part of the Common-Law Record—the Process, the Pleadings, and the Verdict—and Errors Occurring at the Trial were regarded

as extraneous and not to be considered in ren­dering Judgment upon the Motions. Matters extraneous to or outside of the Record could be tested after Verdict and before Judgment only by a Motion for a New Trial. A distinc­tion is made between Matter of Record and Matter of Exception, Matter of Record re­ferring to those Errors Apparent upon the

Face of the Common-Law Record and hence Reviewable after Final Judgment upon a Writ of Error, and Matter of Exception referring to those Errors which Occurred at the Trial, and were Not Apparent on the Face of the Common-Law Record, hence Reviewable aft­er Final Judgment only by incorporating such Errors into the Record by means of a Bill of Exceptions, as authorized by Chapter 31 of the Statute of Westminster II in 1285.~ -

TIlE MOTION FOR A NEW TRIAL
305. A Motion for a New Trial calls for a re-examination by the Court of the occurrences at the Trial to determine whether any errors had been made upon the Trial, or whether any irregularities had occurred in connection with the Trial. A Motion for a New Trial does not reach defects in the Pleadings.
New Trial9
AT Common Law, Proceedings leading to a

decision might be corrected or Reviewed after


7. The Bill of Exceptions Is discussed in Chapter

30.
S. 15 Edw. I., e. 31, 1 Statutes at Large 206 (2255).


9. In general, on the subject of New Trials, see:

Articles: lllddell, New Trials In Present Practice, 27 Yale L.J. 353 (1918); Sipith, The Power to Direct a Verdict, 24 Col.L.Rev. 112 (1924).

Verdict and before Judgment by a Motion for a New Trial; and alter Judgment, by Writ of Error, if the Error was Apparent Upon the Face of the Common-Law Record, or, after 1285, by Bill of Exceptions, if the Error Oc­curred at the Trial. In the first instance, the­re-examination of the case afresh took place-in the same Court; in the second, the re-ex-­amination occurred by reason of the Removal of the Record to a Higher Court by Writ of Error. When the Review was by a Motion for New Trial, which occurred before Judgmçpt, the Entry of Judgment was necessarily sus~ pended pending a Ruling on the Motion,


The Motion for a New Trial was not the procedure to Review Defects on the Face of

the Pleadings, but was and is a Remedy for-any Misconduct, Error or Slip occurring in the progress of the Trial itself which might endanger its fairness, and which indicates the probability of a different result. Its purpose­was to have the Court set aside the Verdict and order a New Trial on the ground that some Error had occurred at the Trial, con­sisting of some alleged Misconduct of the Parties, the Counsel, the Jurors or the Judge.• Prior to 1655, the Law Courts, it was said,• held themselves incompetent to set aside Ver-­dicts, hence the only Remedy available for a
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