their whole course of reasoning, in the premises which they assume, and in the conclusions which they draw therefrom. But this conflict was, in by far the greater part of the States, confined to the earlier periods of the reform, and has virtually disappeared. There is a substantial agreement among the courts in respect to the general principles which they have finally adopted: whatever differences now exist arise in the process of applying these fundamental doctrines to particular cases. The confusion which actually prevails to a very great extent in several of the States results not from any uncertainty either in the general principles or in the more subordinate rules, but from an entire ignorance or disregard of them by pleaders, and from a neglect to enforce them by the judges. § 514. Before entering upon the matter thus outlined a preliminary question suggests itself, upon the answer to which much of the succeeding discussion must turn. This question involves the true relations between the doctrines and rules of pleading enacted by the codes and those which existed previously as parts of the common law and the equity jurisprudence, and may be stated as follows: Are the doctrines and rules contained in the statute to be regarded as the sole guides in pleading under the reformed procedure? or are the ancient methods still controlling, except when inconsistent with some express provisions of the later legislation? In answering this inquiry, the two schools of interpretation so often mentioned again appear, and the difference between them is the same as that already described under a somewhat altered shape.. It is plain that the position taken by the courts, in answering the question here suggested, must to a very great extent influence the whole body of practical rules which they adopt in reference to pleading as well as to all the other features of the civil action. According to one theory, these doctrines and rules of the common law and of equity still remain, although changed in many particulars by the reform legislation: the pleader must first recur to them, and must then examine how far their requirements have been abrogated or altered by the statute; in a word, the legislation is purely amendatory, and is not reconstructive. According to the other theory, these doctrines and rules of the common law and of equity do not exist at all as authoritative and controlling, that is, as controlling because rules of the common law or of equity. The general principles - and fundamental requirements of the codes have been substituted in their place, completely abrogating them, and constituted by the legislature as the only sources of authority to the bench and the bar in shaping the details of the reformed procedure. If any particular doctrine or rule which formerly prevailed is also found existing to-day, it so exists not because it is a part of the common law or of the equity system, but because it is either expressly or impliedly contained in and enacted by the reformatory statute. When, therefore, in discussing and interpreting such a doctrine, a resort is had to the former methods for aid, the reference is, not to obtain authority, but to find an analogy or explanation. In other words, the system introduced by the codes is regarded as complete in itself, entirely displacing the ancient modes. In several particulars, however, its doctrines and rules are either identical with or closely resemble those which existed before; and, in their judicial construction, recourse must be had by way of explanation and analogy merely to these original forms, but no such recourse is to be had for the purpose of obtaining the authority for any proposed measure or practical regulation connected with the pleading under the new procedure. § 515. During the earlier periods of the present system, there was an evident disposition on the part of some judges and courts to adopt the former of these two views, and to hold that the old methods, rules, and requisites of the common law and of equity, are still applicable in substance when not inconsistent with the provisions of the statute; or, in other words, that they had been supplanted only so far as such inconsistency extends. The second theory has, however, been generally if not universally adopted as the true interpretation to be put upon the language of the codes, and as the starting-point in the work of constructing a system of practical rules for pleading. The proposition, as stated in the foregoing paragraph, has been expressly announced in well-considered judgments; in the vast majority of instances, however, it has rather been assumed and impliedly contained in the decision of the court, yet none the less passed upon and affirmed. It may now, I think, be regarded as the established 1 See Howard v. Tiffany, 3 Sandf. 695; Fry v. Bennett, 5 Sandf. 54; McMaster v. Booth, 4 How. Pr. 427; Rochester City Bank v. Suydam, 5 How. Pr. 216; Wooden v. Waffle, 6 How. Pr. 145; Buddington v. Davis, 6 How. Pr. 401; Houghton . doctrine, that the code in each of the States is the only source of authority from which rules of pleading may be drawn, that its methods have completely supplanted those which preceded it, so that the latter can no longer be appealed to as possessing of themselves any force and authority.1 § 516. The general and essential principles of pleading. I shall now proceed to gather from the text of the codes, as interpreted by the most authoritative decisions, and to state in order, the comparatively few general and essential principles of pleading introduced by the reformed procedure, which constitute the foundation of its simple, natural, and scientific as well as practical system. These essential principles apply to certain classes of answers in addition to all complaints or petitions, although from the nature of the two pleadings they find their fullest and highest expression in the latter. Whenever the answer is simply in the form of denial, whether general or specific, it is of course governed by rules applicable to it alone. But so far as the answer contains defences of new matter, and a fortiori so far as it contains a counterclaim, or set-off, or the basis of any affirmative relief, its allegations and those of the complaint or petition must conform to the same requirements, must follow the same method. The general and essential principles of the reformed pleading now to be discussed, illustrated, and arranged in an orderly manner, apply therefore alike to the plaintiff's statement of his case for relief, and to the defendant's statement of affirmative matter, either by way of defences in confession and avoidance, or by way of cross demands against any parties to the action. § 517. The fundamental and most important principle of the reformed pleading, the one from which all the others are deduced as necessary corollaries, is the following: The material facts which constitute the ground of relief, or the defence of new matter (confession and avoidance), should be averred as they actually existed or took place, and not the legal effect or aspect of those facts, and not the mere evidence or probative matter by which their existence is established.2 I have purposely refrained 1 Trustees v. Odlin, 8 Ohio St. 293; Jolly v. Terre Haute, &c. Co., 9 Ind. 421; White v. Joy, 13 N. Y. 83, 90; People v. Ryder, 12 N. Y. 433, 438, 439; Ahern v. Collins, 39 Mo. 145, 150. 2 People v. Ryder, 12 N. Y. 433 437; Hill v. Barrett, 14 B. Mon. 83; Green v. Palmer, 15 Cal. 411, 414; Rogers v. Milwaukee, 13 Wisc. 610, 611; Bird v. Mayer, 8 Wisc. 362, 367; Horn v. Ludington, 28 from using the common formula, "facts which constitute the cause of action," in order that the principle might be expressed Wisc. 81, 83; Groves v. Tallman, 8 Nev. 178; Pier v. Heinrichoffen, 52 Mo. 333, 335; Wills v. Wills, 34 Ind. 106, 107; De Graw v. Elmore, 50 N. Y. 1; Cowin v. Toole, 31 Iowa, 513, 516; Singleton v. Scott, 11 Iowa, 589; Bowen v. Aubrey, 22 Cal. 566, 569; Pfiffner v. Krapfel, 28 Iowa, 27, 34; White v. Lyons, 42 Cal. 279, 282; Louisville, &c. Co. v. Murphy, 9 Bush, 522, 527; Gates v. Salmon, 46 Cal. 361, 379; King v. Enterprise Ins. Co., 45 Ind. 43, 55; Lytle v. Lytle, 37 Ind. 281; Van Schaick v. Farrow, 25 Ind. 310; Chicago, &c. R. R. v. North West. Un. Co., 38 Iowa, 377, 382; Bowen v. Emmerson, 3 Oreg. 452; Cline v. Cline, 3 Oreg. 355, 358; Oates v. Gray, 66 N. C. 442, 443; Farron v. Sherwood, 17 N. Y. 227; Coryell v. Cain, 16 Cal. 567,571. I quote from some of these cases in which the general principle is fully stated, in order that the exact views of the courts may be shown, as well as the conclusions drawn from them in the text. The opinion of Marvin J. in People v. Ryder is exceedingly instructive, and covers most of the subordinate questions that arise in connection with the general topic. He said (p. 437): "This rule [§. 142 of the New York code] is substantially as it existed, prior to its enactment, in actions at law. Chitty says: In general, whatever circumstances are necessary to constitute the cause of complaint or ground of defence must be stated in the pleadings, and all beyond is surplusage; facts only are to be stated, and not arguments or inferences or matter of law, in which respect pleadings at law appear to differ materially from those in equity.' (1 Ch. Pl. 245.) At page 266 he says: It is a most important principle of the law of pleading, that in alleging the fact it is unnecessary to state such circumstances as tend to prove the truth of it. The dry allegation of the fact, without detailing a variety of minute circumstances which constitute the evidence of it, will suffice. The object of the pleadings is to arrive at a specific issue upon a given and material fact; and that is attained although the evidence of such fact to be laid before a jury be not specifically developed in the pleadings.' I have supposed it safe, and a compliance with the code, to state the facts constituting the cause of action substantially in the same manner in which they were stated in the old system in a special count. By that system the legal issuable facts were to be stated, and the evidence by which those facts were to be established was to be brought forward upon the trial. This position will not embrace what were known as the common counts. . . . It has been supposed that a wider latitude should be allowed in equity pleading, and that evidence may to some extent be incor porated in the statement. The rule of the code is broad enough for all cases; and it permits a statement of facts and circumstances as contradistinguished from the evidence which is to establish those facts. But in all equity cases the facts may be more numerous, more compli cated, more involved; and the pleader may state all these facts in a legal and concise form which constitute the cause of action, and entitle him to relief. The rule touching the statement of facts constituting the cause of action is the same in all cases; and the rules by which the sufficiency of pleadings is to be determined are prescribed by the code." How far the positions quoted from Mr. Chitty are correct is shown in the preceding paragraphs of this section. No more accurate exposition of the fundamental doctrine announced by the codes is to be found in the books than the foregoing opinion of Mr. Justice Marvin. In several of the cases to be cited the discussion has been confined to legal actions, and general statements have been made in reference to the "material" or "issuable" facts which are plainly erroneous when applied to suits brought for equitable relief. The principle as formulated by Mr. Justice Marvin embraces both species of actions, and brings them both within the purview of the statutory provision. In Hill r. Barrett the same fundamental principle was stated by Marshall J. in a most clear and admirable manner (p. 84): “ Although the Code of Practice has abolished not in its most comprehensive manner, and might include equitable as well as legal actions. As will be shown in the sequel, it is only the pre-existing forms of action, but also the pre-existing forms of pleading, and has declared that henceforth the forms of pleadings and the rules by which their sufficiency is to be determined are those prescribed in the code itself, it adopts what has always been a cardinal rule with respect to the allegation of the plaintiff, now called a petition, that it must contain a statement of the facts constituting the plaintiff's cause of action. While the code contains a very few additional rules with respect to the mode or manner of alleging the facts relied upon as constituting a cause of action, it does not, and could not, particularize the facts necessary to be stated, nor give any affirmative rule more special or more instructive than that which requires that the petition shall contain the facts constituting the plaintiff's cause of action." [Here follows the passage quoted in the text of § 108, supra to and including the words "that the declaration must state the facts which constitute the plaintiff's cause of action; " after which the opinion proceeds as follows:] "In adopting this fundamental rule of pleading, the code must be considered as adopting also the prevailing and authoritative expositions of it as understood at the time, except so far as the code itself either expressly or by necessary implication requires facts to be stated which need not before have been stated, or dispenses with the statement of facts formerly deemed necessary. The express dispensations apply rather to the forms of statement than to the facts to be stated. The implied dispensations grow mainly out of the reduction of all actions to one form. The requisites of additional facts may be implied from the abolition of that rule which had formerly made it sufficient, and indeed proper, to state facts according to their legal effect, instrad of stating them as they actually occurred, while the code seems to require by the rule that they shall be stated in ordinary language." In Green v. Palmer, the Supreme Court of California laid down the rules in respect to the kinds of facts which should be averred, and defined the nature of "material" or "issuable" facts in a most exhaustive manner. From the elaborate opinion of Field C. J. the following extracts are taken (p. 414) : "First rule. Facts only must be stated. This means the facts as contradistinguished from the law, from argument, from hypothesis, and from evidence of the facts. The facts must be carefully distinguished from the evidence of the facts. The criterion to distinguish the facts from the evidence is, Second rule. Those facts, and those alone, must be stated which constitute the cause of action, the defence, or the reply. Therefore (1) each party must allege every fact which he is required to prove, and will be precluded from proving any fact not alleged. The plaintiff, on his part, must allege all that he will have to prove to maintain his action; the defendant, on his part, all that he must prove to defeat the plaintiff's title after the complaint is admitted or proved. (2) He must allege nothing affirmatively which he is not required to prove. This is sometimes put in the following form; viz., 'that those facts, and those only, should be stated which the party would be required to prove.' But this is inaccurate, since negative allegations are frequently necessary, and they are not to be proved. The rule applies, however, to all affirmative allegations, and, thus applied, is universal. Every fact essential to the claim or defence should be stated. If this part of the rule is violated, the adverse party may demur. In the second place, nothing should be stated which is not essential to the claim or defence; or, in other words, none but 'issuable' facts should be stated. If this part of the rule be violated, the adverse party may move to strike out the unessential parts. An unessential, or what is the same thing, an immaterial allegation, is one which can be stricken from the pleading without leav ing it insufficient, and, of course, need not be proved or disproved. The following question will determine in every case whether an allegation be material: Can it be made the subject of a material issue? |