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50. 15 Johns. (N.Y.) 431 (1818). 883 (1927).

See. 4



extent of its adaptation of its Rules to the accomplishment of its Main Functions, that is, Fair Notice to the Parties and the ac­curate, practical and systematic presentation of the precise Questions of Law and Fact in­volvéd to the Tribunal which is to decide them. The various and possible Functions of Pleading may, therefore, be enumerated as follows:

(1) To reduce the controversy between the Parties to a single, clear-cut well-defined Is­sue of Fact or of Law, and to separate Issues of Law from Issues of Fact, so that the Issues of Law may be determined as far as possible in advance of the Trial of the Facts;
(2) To reduce Questions of Fact to clear-cut Issues by eliminating immaterial and in­cidental matters, and narrowing the case to one or more specific propositions on which the controversy really turns, thus operating as an aid to the Court in Admitting or Re­jecting Offers of Evidence;
(3) To notify the Parties themselves and the Deciding Tribunal of the respective Claims, Defenses and Counter-Demands of the Adversaries;
(4) 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;
(5) To serve as a Formal Basis for the Judgment;
(6) To preserve a Record of the Contro­versy Litigated and to create a foundation for a Plea of Res Judicata, thus preventing a relitigation of the same controversy be­tween the same parties at a later date.
It thus becomes clear that historically, the principal purpose of the Rules of Pleading has been to compel each person to state the essential elements of his Cairn or Defense in order to arrive at an Issue. It has not always been true that Common-Law Pleading has ac­complished the objective of reducing all cas­

es to definite Issues, this end being defeated on occasion by resort to technical procedural devices which had outgrown their days of usefulness.52 But in both Common-Law and Code Pleading, the Issue-Raising Function far overshadows the Notice-Giving One, and is the source of the Principal Rules of Plead­ing. It is so under the Modern English Plead­ing. The case must be analyzed and reduced to Issues at the Trial, if not before, and it is inexpedient to postpone this essential pre­liminary to the day of Trial.

4. The Beginning Student, if authorized to create an entirely New System of Law, would normally first define Rights and Liabilities and thereafter set up a System of Courts to enforce those Rights and Liabilities, whereas, as a mat­ter of historical knowledge, the Law grew up in exactly the opposite way; the great Body of our Modern Contract, Property and Tort Sub­stantive Law having had its Origin in and De­veloped out of Procedure.
UNDER Anglo-American law, the Sub­stantive Law Defines rights and liabilities and the Procedural Law furnishes the ways

and means of enforcing those rights and lia­bilities. But in what order did this develop­ment take place? Were rights and liabilities first defined and thereafter Courts estab­lished to enforce those rights and liabilities, or were Courts first set up and thereafter rights and liabilities defined? This question, if asked of a Beginning Student of the Law, will invariably be answered by a statement that rights and liabilities would first be de­fined, with the Courts to enforce them to be established thereafter.53

52. Whittier, Judge Gilbert and 1lliiioi~ Pleading lie-form, 4 Iil.L.Rcv. 174, 176—178 (1909).
5~. “A System of Laws promulgated by a Lawgiver undoubtedly commence with a defi,,ition of rights, and thence proceed to prescribe duties, thence to pro­hibit wrongs, and finally to provide legal remedies.” Robinson, Elements of American Jurisprudence, e. V, § 5, 155 (Boston, 1000).



Ch. 1

In fact the Law grew up in exactly the op­posite way, Courts being organized to handle a series of specific cases, the decisions of which gradually developed theories of rights and liabilities. In short, our rights and lia­bilities as defined by Substantive Law, had their origin in and developed out of Proce­dural Law. If this be true, how did it come about? Let us assume that A and B are ship­wrecked and land on the proverbial uninhab­ited, deserted island. A, quickly recovering from the shock, shakes the water off, works his way up to a nearby knoll, where the ground is level and the view good, and says:

“I like this place; I think I shall take posses­sion,” Who owns that knoll? A owns it by reason of having first acquired possession, by reason of his strong right arm. As a re­sult he may also be said to have acquired a moral but not a legal right to retain posses­sion. Some time later, B pulls himself to­gether, and discovers A on the knoll. An-ty­ing there, he surveys the prospect with satis­faction equal to that of A, and then, after pondering over the situation, declares: “I like this knoll too; I think I shall take it.” “Oh, no you won’t,” exclaims A; “This knoll belongs to me.” “Oh, yes I will,” retorts B. “Oh, no you won’t,” bristles A; whereupon B, abandoning further argument, strikes A over the head with a club, and takes possession. Now, who owns the knoll? B. By what right? Not by a moral right, as A preceded him in possession in point of time; not by a legal right, because in the absence of a Court in which a remedy couid be sought, no such right yet existed. In reality B now owns the knoll by right of the strong arm; by right of might, that being at the moment the only Law in effect on the island.
Without going into the evolutionary devel­opments involved, let us say that time moves on, and later we find that other members have joined the society of A and B—men, women, and children, After this develop-

ment, C) hits D over the head with a club; the blow glances off D’s head and strikes E, the child of a third party, Immediately there is great excitement in the community, The people crowd together, and someone is heard to say: “As long as A and B were the only inhabitants on this island, this business of their hitting one another over the head was their own affair; but now that there are oth­ers here, we must do something to control such actions.” But “What can we do” ex­claimed the others! At this point someone suggested that the group shouid select a lead­er, hail the individuals before that leader, who would then hear both sides of the con­troversy and render a decision. Accordingly, the group chose its fastest runner, its wisest counselor, its best medicine man, its most esteemed religious adviser, or its greatest military leader, escorted him to the edge of the forest, and set him up on a stump to de­cide the controversy, Thus, was the Court or Tribunal created; thus, did the group take its first step in the Development of the Law; thus, did it prepare the way for transforming moral into legal rights. Then the group took C, D, and E before the newly created tribu­nal, In turn D and E were required to tell their story, and C was permitted to present his side, Before any decision was rendered the most that could be said in favor of D and F was that in the view of the group, their moral right not to be interfered with had been violated; as yet they had no legal rights as they were still without a remedy. After hearing both sides of the controversy, let us assume that the Court, presided over by the chosen leader, who has now become a Judge, fines C twenty hides, ten hides to go to the injured Parties, ten hides to go to the Com­munity. At the moment of decision, I) and F for the first time had acquired a legal right not to be struck, the moral right having been changed into a legal right through the ac­quisition of a legal remedy. Let us now as-

Sec. 5
sume further that after two or three similar episodes of this kind, in which the B’s and C’s were fined for having struck someone, the wiser members of the group, while wending their way home from the Court, began to reason somewhat as follows: If, when B strikes A over the head with a club, he is hailed before a Court and punished, it must be because A had a right not to be struck; if A has such a right, then B must be under a duty not to violate it; if B does violate A’s right not to be struck and his own duty not to strike, B commits a wrong for which he may be held liable, Thus, the concepts of right and duty,M of wrong and liability, are merely different sides of the same shield. If the rights violated involved a breach of duty to the community or state, the accused was said to be guilty of a criminal wrong whereas if the rights violated were concerned with breaches of duties as between indi­viduals of the group or society, the ac­cused were said to be guilty of a civil wrong. But at this stage of the discussion, the im­portant point to be observed in the foregoing account is that these primitive legal concepts of right, duty, wrong and liability, had their Origin in and Developed out of Procedure, that is, out of the process by which a myriad of single instances, of specific factual situa­tions, were presented to and decided by a Court; that the Substantive Law right of A, D, and E not to be struck, came into exist­ence only upon the pronouncement of Judge­ment by the Tribunal.
This process not only produced a body of Substantive Contract, Property and Tort Law, but it also exercised, as we shall see, a profound effect upon the Form of our Judi­cial Organization, which in turn developed the five great Systems of Administrative, Admiralty, Common, Equity and Probate Law.


5. The Nature and Function of Pleading at Common Law may be better understood when viewed in its relationship to the Other Sys­tems of Procedure which developed prior to, contemporaneous with, or even subsequent to it, including Equity and Code Pleading, as well as Pleading under the New Federal Rules of Civil Procedure.
IN order to give a better perspective of the Nature and Function of Common-Law Plead­ing as a factor in Anglo-Saxon Law, it may be well to consider its relation to the other Systems of Procedure which developed prior to, contemporaneous with, or even subse­quent to it. These include Equity and Code Pleading, as well as Pleading under the New Federal Rules of Civil Procedure, the rela­tionship of which to Common-Law Pleading will now be considered.
Relation to Equity Pleading

EQUITY Pleading was the System of Plead­ing which was developed by the Courts of Equity in England, through the King’s ex­ercise of a portion of his Judicial Preroga­tive in cases involving matters of conscience. The King’s authority was in the beginning handled through his Chancellor who was a Churchman trained in the Canon or Ecclesi­astical Law, which had its roots in the Ro­man Law, hence it is not surprising to find that Both Systems failed to provide a Jury for the Trial of Facts. As a result of this characteristic, certain differences between the Common Law and Equity Systems of Procedure developed.

In the first place, at Law, the Pleadings at Common Law were required to reduce the controversy to a single, clear-cut, well-de­fined Issue of Fact or of Law, whereas in Equity, there could be as many Issues of Law or of Fact as the Pleaders desired. This was due to the dual character of the Common-Law Court, which consisted of the Judge, who normally decided Questions of Law, and


54. See Langdell, A Brief Survey of Equity Jurisdic­tion, 1 Harv,Lj3ev. 55 (1837),



Ch. 1

the Jury, which decided Questions of Fact, as opposed to the Equity Court, consisting of the Chancellor only, who was a trained Law­yer, capable of handling Complicated Issues of Both Law and Fact.

Secondly, and largely as a result of the first difference between the Two Systems, at Law, a plaintiff, in order to state a cause of action was required to state Ultimate Facts, and not Evidentiary Facts or Conclusions of Law, whereas, in Equity, he might plead Ultimate Facts, Evidentiary Facts, and even Conclu­sions of Law, as the Chancellor could unravel the Issues in spite of the resulting confusion.
Thirdly, at Common Law only those Par­ties who had an interest in the right being litigated could be joined as plaintiffs and only those Parties who were subject to a joint lia­bility could be joined as defendants, where­as, in Equity, the procedure for the joinder of parties plaintiff and defendant was much more flexible.
Fourthly, at Common Law, a Party was frequently entitled to Trial by Jury as a mat­ter of right, and if the Jury returned a Ver­dict in favor of such Party, its finding on the Facts was binding on the Court, whereas, in Equity, a Party was entitled to Trial by Jury only in the discretion of the Chancellor, and if, perchance, the Jury found in favor of a Party on the Facts, such finding was not binding on the Court, was only advisory in its effect, the Chancellor being free to disre­gard it in his discretion.
Fifthly, at Common Law, a Judgment had to be rendered in favor of or against all the defendants; it could not be split, so as to ap­portion the liability among the defendants; whereas, in Equity the Decree could be split up and given against one or all of the defend­ants, thus allowing for a much more flexible apportionment of liability, without the neces­sity of further action.
Sixthly, at Common Law, a Judgment merely determined the matter of right be-

tween the Parties; it did not order the de­fendant to do anything, and if the defendant was not goaded into action by the mere moral suasion of the Judgment, the plaintiff was compelled to sue out an Execution on the Judgment, whereas, in Equity, the Decree not only determined the matter of right be­tween the Parties, but it actually ordered the defendant to do something in recognition of that established right on peril of being punished for contempt for failure so to do.

Seventhly, at Common Law, only Ques­tions of Law were ordinarily open to Appel­late Review; if the Error of Law was Ap­parent on the Face of the Record, it was Re­viewable by Writ of Error; if it was Not Apparent on the Face of the Record, but was one which occurred at the Trial, prior to the Statute of Westminster II (1285) ,~ the only Method of Review was after Verdict and before Judgment, by a Motion for a New Trial, but, after the Statute, such Errors could be reached by a Bifi of Exceptions, whereas, in Equity, both Questions of Law and Questions of Fact were Reviewable on Equitable Appeal.
With these distinctions between Common Law and Equity Procedure in mind, it be­comes readily apparent that when the Court of Equity undertook to settle matters of con­science in dispute between private Parties, influenced by the Civil Law background of the Chancellor, it naturally adopted the Civil Law Mode of Procedure, avoiding the Techni­cal Rules of Pleading as they existed at Com­mon Law. In theory, however, in Equity, as at Common Law, the forensic Altercations between the Parties might be carried to an unlimited extent, thus permitting the plain­tiff and defendant through Alternate Allega­tions to frame Issues of Law or of Fact upon which the Court could base a Decree. In framing his statement of a cause of action in what was called a “Bill in Equity” as op­

5~. 13 Ethv. I.

Sec. 5



posed to a “Declaration at Law”, the plaintiff followed no set Form of Action, as at Com­mon Law, but proceeded upon the board equi­ties involved in the controversy, and stated the Facts at large, mingling both Questions of Féct and of Law, there being no need to separate them on the Record as at Law, since they were both to be decided by the Chan­cellor, who was trained in the art of sifting from the complicated statements the deter­minative Issues; whereas, at Law, Issues of Fact were to be decided by a Jury, while Issues of Law were to be passed on by the

Court, and Both Types of Issues were framed

by the Parties, and not as in Equity, extract-ed from the Pleadings by the Court. In prac­tice, however, the Pleadings in Equity did not ordinarily go beyond the Replication Stage, and frequently not beyond the An­swer. What really happened was that each Party stated all the Facts in One Pleading,

•though properly belonging to a Subsequent Stage of Pleading, and then these were dealt with as if stated in a regular series of Affirm­ative Pleadings in proper order. After An­swer filed, the plaintiff might Amend his Bill to anticipate Defenses, upon the new light given him by the defendant, and the defend­ant, in turn, was permitted to make a New Answer to the Amended Bill. Thus, the Rep­lication was actually sometimes incorporated in the Bill, along with the Issuable Facts

•which constituted the Equity of the Eill, and which the plaintiff must prove to obtain the Relief Prayed for; and the defendant there­upon Rejoined with New Matter of Defense or Excuse along with his Answer. There­after, the plaintiff filed a Replication as a mere Matter of Form to place the Answer in Issue. The Bill in Equity therefore consisted of three parts, the Narrative, which con­tained a Statement of the Plaintiff’s Case for

Relief; the Charge, which anticipated and attempted to refute the Defenses of the de­fendant; and the Interrogative, which was

to extract from him Admissions Under Oath in his Answer. It will be observed, therefore, that the Bill and Answer were generally framed so as to include the evidence by which each Party sought to sustain his position or to defeat that of his Adversary, as well as the legal arguments and conclusions, which properly should have been presented in the Briefs of Counsel.5°

On this very point of the theory of Law and Evidence, Common-Law Pleading and Procedure was vastly superior to the Civil Law and to the Procedure in Equity. How­ever clearly substantive obligations and rights may be defined in any System of Law, there can be no security or freedom for the individual when judicially investigated, if competent evidence is rejected and incom­petent evidence is admitted. Under the Com­mon-Law System of reducing controversies to a single Issue of Fact, the Court could Rule accurately upon Offers of Evidence, ad­mitting that which was proper, and rejecting that which was improper, whereas, in Equity, which adopted the Civil Law System of Pleadings, permitting loose, detailed State­ments of Both Law and Fact, as well as Con­clusions, the Issue in dispute was placed in such doubt that the Scope of the Evidence was so broadened as frequently to permit the introduction of matter wholly foreign to the real controversy. Common Law Pleading, which was designed to frame a certain Issue of Fact for Trial by twelve men, avoided this pitfall by indicating the character of and the limitations upon the evidence to be admitted.
Relation to Code Pleading

THE relationship between the Common Law and Code Systems as to the Structure of Pleadings has been largely obscured on the one hand by the Procedural Reformers who, as an incident of their objectives, have played

SC. Pomeroy, Code Remedies; Remedies and Reme­dial Eights by the Civil Action, c. IH, Section Third, The General Principles o~ Pleading, 525 (4th ed. by

used to probe the defendant’s conscience and

Bogle, Boston, 1004).



Ch. I

down the Advantages of Adjective Common Law and played up the alleged Superior Qual­ities of Code Procedure; and on the other, by the members of the Teaching Profession, who have not had the ability, or who have not taken the time and patience required to understand and appreciate Pleading at Com­mon Law. But speaking of the point of rela­tionship, it is clear that there are few Rules Regulating the Substance of Pleading under Modern Codes and Practice Acts which have not been directly borrowed from the Com­mon Law, or framed by analogy in the appli­cation of the same principle.57 In fact, the Century following the Adoption of the Code of Procedure of New York in 1848,~ has been one in which the Common-Law Rules have been read back into the apparently clear and simple provisions of the Reformed Pro­cedure, the unadulterated truth being that such provisions had no legal content except as expounded against the appropriate Com­mon Law Procedural Background. Code Pleading is not, as many have assumed, a System having no relation to existing law. Common-Law Pleading has not been abol­ished; it still survives as the basis of all legal investigation; it is in fact the direct Lineal Ancestor or Parent of Code Pleading, which literally springs from its Join. At best the Codification of Pleading is only partial, leav­ing wide gaps in the System of Remedial Law to be filled in by Common-Law Pleading,

~t See 1 Standard Encyclopedia of Procedure, In­troduction, ~ 11 (Los Angeles and Chicago, 1911).

See, also, Solomon v. Vinson, 31 Minn, 205, 17 NW.

340 (1883); Dunnel, Minnesota Pleading. c. I, § 9

(1st ed. Minneapolis 1899).

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 NC. 707, 771 (1870). The rules of pleading at Common Law have not been abro­gated by the Code of Civil Procedure. The essen­tial principles still remain. Henry mv. Co. v. Semonian, 40 Cob. 269, 90 P. 682 (1907); Hughes, Procedure, Its Theory and Practice 488 (Chicago 1905).

with its actual provisions interpretable only against the Older System. It becomes clear, therefore, that one can only come to full ap­prehension of Code Pleading through the study of Common-Law Pleading.

To illustrate this point, let us take the Common Code provision that the Complaint must state facts in “plain and concise” lan­guage.5° To one not trained in the Common Law this means a statement of “facts,” as Charles O’Connor, the distinguished New York Lawyer and Pleader, observed, “just as any old woman, in trouble for the first time, would narrate her grievances,~’SC and whipped into some semblance of order by use of a Form Book; to one trained in the Common Law, it would mean that the plaintiff, in or­der to state a Cause of Action, or the defend­ant, in order to state a Defense, should state the Ultimate Facts, and not the Evidence of Facts and not Conclusions of Law, as pointed out in the leading New York case of Allen v. Patterson.6

Bliss, in his famous work on Code Plead­ing,°2 stated Rules covering presumptions of Fact, Matters Judicially Noticed, Anticipat­ing Defenses, and Pleading Evidence, Con­clusions of Law, or Immaterial or Irrele­vant Matters. But in each instance the source of such Rule under the Code is Common-Law Pleading; each Rule is in ef­fect merely a restatement, in slightly differ­ent phraseology, of the Rule as developed at Common Law. So, likewise, as to the Rules governing such matters as Duplicity, Cer­tainty, Consistency, Directness, Argumenta­tiveness, Allegations by way of Recital, and Alternative or Hypothetical Pleading. In

69. N.Y.code of Civil Procedure, 1894, § 451.
00. Shipman, Code Pleading: The Aid of the Earlier Systems, 7 Yale Li. 197, 199 (1808).

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