in which the "issuable" or "material" facts constitute the cause of action or the defence in a suit at law. I repeat the statement already made, for it is an important one, that this description does not necessarily apply to every case of equitable relief. Under certain circumstances, and in some particular instances, the remedy and the right to its recovery are single and depend upon the existence of a few well-defined and controlling facts; such facts are then "material" or "issuable", in the strictest sense of those terms, and they are all that it is requisite to allege in the pleading. In most instances, however, an equity pleading necessarily contained allegations of facts which were not "issuable" in the technical meaning of that word, but which were nevertheless the basis of the relief demanded and obtained. I have dwelt thus carefully upon the foregoing analysis, because it is the element which enters into and decides a most important question to be considered in the sequel; namely, whether the proper modes of pleading in legal and in equitable actions under the reformed procedure can be referred to and derived from the single fundamental principle announced by all the codes. Another essential feature belonged to the equity method of pleading, and distinguished it from that which prevailed in courts of law. The facts upon which the contentions of the litigant parties wholly or partially depended were averred as they actually happened or existed, and not the legal effect or aspect of those facts. This distinction was a vital one, as will be fully pointed out in the succeeding paragraphs, and its relations with the reformed theory of pleading are direct and intimate.

§ 402. *508. The Common-Law System of Pleading. Introductory. I come finally to the common-law system of pleading. It has frequently been said, even by able judges, that under this method the material, issuable facts constituting the cause of action, and they alone, were to be alleged; and that, as exactly the same principle lies at the basis of the new system, the latter has made no substantial change, but has only removed the unnecessary and troublesome incidents which had been gathered around the original simple common-law conception. In support of this view, the general language of Chitty and other textwriters is quoted as conclusive. There is just enough truth in this description of the common-law pleading to make it plausible;. but enough of error to render it, when adopted as a means of

interpreting the codes, extremely misleading. In fact, it is impossible to describe the common-law pleading as a unit: it was governed by no universal principles; the modes which prevailed in certain actions were radically unlike those that were employed in others. I shall attempt in a very brief manner to point out all its essential features, and to explain its general character.

§ 403. * 509. Technicality of the, System. In the first place, certain elements were firmly incorporated into the system which were not really fundamental and essential, although often regarded and spoken of as its peculiarly characteristic requisites. I refer to the extreme nicety, precision, and accuracy which were demanded by the courts in the framing of allegations, in averring either the facts from which the primary rights of the parties arose, or those which constituted the breach of such rights, in the use of technical phrases and formulas, in the certainty of statement produced by negativing almost all possible conclusions different from that affirmed by the pleader, in the numerous repetitions of the same averment, and finally in the invention and employment of a language and mode of expression utterly unlike the ordinary spoken or written English, and meaningless to any person but a trained expert. This requirement of accuracy and precision was in former times pushed to an absurd and most unjust extreme; as for example, the use of the past tense "had," instead of the present "have," in a material allegation, would be fatal to the plaintiff's recovery. If it be said that these extreme niceties and absurd technicalities were things of the past, abandoned by the law courts in modern times, a perusal of some standard reports for instance, those of Meeson and Welsby will show on what grounds of the merest form the rights of litigant parties have been determined, even within the present generation. Still, I do not regard this precision, accuracy, and general technicality, which actually distinguished the common-law system of pleading, as something essential to its existence, as its absolutely necessary elements. It might have retained all its fundamental principles in respect to the nature of the allegations used and the kinds of facts averred, and at the same time have employed the familiar language of common narrative in making all these averments. The essential elements of the system would then be presented in their naked simplicity. The actual technicalities which have been thus mentioned, and

which were the boast of the skilful special pleader, were only a disgrace to the administration of justice. However pleasant they might have been as exercises in logic, they were productive of untold injustice to suitors. It is simply amazing that they could have been retained so long and adhered to so tenaciously, and even lauded with extravagant eulogium, among peoples like the English and the American. That they were entirely abrogated by all the codes of procedure is plain; and after a series of improvements, commencing in 1834, when the celebrated "Rules of Hilary Term" were adopted, the British Parliament has swept them out of the English law, and has introduced the substance of the American system.

In

§ 404. *510. Essential Principles and Elements of Common-Law Pleading. Passing from these technical incidents, I proceed to inquire what were the real and essential principles and elements of the common-law pleading. How far was it true that the material facts constituting the cause of action, and these alone,✔ were to be alleged? This statement was partly correct, - that is, correct under most important limitations and reservations, in certain of the forms of action; while in the other of these forms of action it was not true in the slightest extent; in fact, it was diametrically opposed to the truth. I will recapitulate the important actions, and refer them to their proper classes. ejectment there can be no pretence that any attempt was made to allege the actual facts constituting the cause of action; the declaration and accompanying proceedings were a mass of fictions which had become ridiculous, whatever may have been their original usefulness, and the answer was the general issue; the record thus threw no light upon the real issues to be tried by the jury. In trover, the averments of the declaration were that the plaintiff was possessed, as his own property, of certain specified chattels; that he lost them; and that the defendant found them, and converted them to his own use. Throwing out of view the abused fictions of a loss and a finding, there was here the statement of two facts, namely, the description of the chattels so as to identify them, and the plaintiff's property in them; but the most important allegation of all, the one upon which in the vast majority of cases the whole controversy would turn, was a pure conclusion of law. The statement that defendant had converted the same to his own use did not indicate any fact to

be considered and decided by the jury in reaching their verdict. In the action of debt, also, the important allegation was a mere conclusion of law, namely, that the defendant was indebted to the plaintiff in a certain sum whereupon an action had accrued; and although the declaration contained a further statement of the consideration or cause of the indebtedness, yet as a whole it did not pretend to set forth the material facts constituting the cause of action. In assumpsit, the pleadings were of two very different species, in all cases of implied promises, and especially when the common counts were resorted to, the averments were purely fictitious, as much so as in ejectment; there was not the slightest approach towards a statement of the facts constituting a cause of action as they actually existed. When the suit was brought upon an express contract, and the declaration was in the form of a special assumpsit, there was a greater appearance of alleging facts; but even here the facts were stated in their supposed legal aspect and effect, as legal conclusions, and not simply as they occurred. There are left to be considered the actions of covenant, detinue, trespass, and case. In each one of these, according to the nature of the action, the facts constituting the grounds for a recovery were more nearly stated, although in some of them the averments were required to be made in an exceedingly precise and technical manner. The declaration in a special action on the case necessarily comprised a narrative of the actual facts constituting the cause of action; but as has been said, this narrative was thrown into a very arbitrary, technical, and unnatural shape. It therefore bore some resemblance in substance to a complaint or a petition, when properly framed according to the reformed theory; and some judges have even said that every such complaint or petition is a declaration in a special action on the case. The assertion so often made by the older text-writers, and repeated by modern judges, that the common-law system of pleading demanded allegations of the facts constituting the cause of action or the defence, is thus, as a general proposition, manifestly incorrect, for in many forms of action there was no pretence of any such averments.

§ 405. *511. Same Subject. But we must go a step farther in order to obtain an accurate notion of the common-law theory. In all the instances where fictions were discarded, and where the important allegations were not mere naked conclusions of law,

but where, on the contrary, the plaintiff assumed to state the "issuable" facts constituting his cause of action, he did not narrate the exact transaction between himself and the defendant from which the rights and duties of the respective parties arose ; he stated only what he conceived to be the legal effect of these facts. The “issuable" facts, in the contemplation of the common-law system, were not the actual controlling facts as they really occurred, and as they would be proved by the evidence, from which the law derived the right of recovery: they were the legal aspect of those facts, not strictly the bare conclusions of law themselves derived from the circumstances of the case, but rather combinations of fact and law, or the facts with a legal coloring, and clothed with a legal character. The result was, that the "issuable" facts as averred in the pleading were often purely fictitious; that is, no such events or occurrences as alleged ever took place, but they were represented as having taken place in the manner conceived of by the law. The pleader of course set forth his own view of this legal effect under the peril of a possible error in his application of the law to his case; if a mistake was made in properly conceiving of this legal effect, or, in other words, if the facts established by the evidence did not. correspond with his opinion as to their legal aspect stated in the declaration, the plaintiff's suit would entirely fail.1

1 In corroboration of these conclusions, I quote a paragraph from a series of exceedingly able articles upon the English Judicature Bill, which appeared in the "Saturday Review" during the year 1873, and were correctly attributed to one of the foremost English barristers as their author. While discussing the pleading which ought to be introduced, he describes the common-law methods by way of contrast, and, among others, the following as one of its features: "The first striking difference is this, that, on the commonlaw plan, a plaintiff is required to state, not the facts, but what he considers to be the legal effect of the facts. If his advisers take a wrong view of a doubtful point, and make him declare, say, for goods sold and delivered when the real facts, as proved, only make a case of goods bargained and sold, the unlucky plaintiff is cast, not because he is not entitled to recover, but because he has not

put his case as wisely as he might have done. In practice, dangers of this kind are mitigated, though by no means invariably escaped, by inserting a multitude of counts, all giving slightly different versions of the same transaction, in order that on one or other of them the plaintiff may be found to have stated correctly the legal effect of the facts. The permission to do this was in fact a recognition of the plaintiff's inherent right to ask alternative relief; but it was clogged by the absurd condition that he could only do so by resorting to the clumsy fiction of pretending to have a number of independent grounds of action, when he knew that he had only one, but did not know exactly what the court might consider the legal effect of his facts to be. This was not only unscientific and irrational, but, in some cases, it has led to enormous expense by compelling a plaintiff to declare on, and a defendant to plead to, scores of