§ 406. *512. History of the Action of Assumpsit. The extent of these fictitious allegations in pleading, and their influence upon the form and growth of legal doctrines at large, are exhibited in a remarkable manner by the history of the action of assumpsit, and its effect in originating and developing the doctrine of implied promises and contracts. At an early day, the action of debt was the only one by which to recover for the breach of an unsealed contract; but the defendant was permitted to "wage his law," and by that means to greatly embarrass, if not to defeat, the plaintiff's recovery. To obviate this difficulty, the action of assumpsit was at length invented. The gist of this action was the defendant's promise; the distinctive averment of the declaration was the promise, of course express in form, and so indispensable was it, that, if the allegation was omitted, judgment would be arrested, or reversed on error, even after verdict in the plaintiff's favor. The promise was stated to have been

fictitiously differing counts, when there was only one matter in dispute between them. We do not suppose that the greatest zealot among special pleaders would say that such a queer scheme as this is preferable to one under which the plaintiff states the facts on which he founds his claim, and asks for such relief as their legal effect may entitle him to." Saturday Review," April 12, 1873, vol. 35, p. 472. In the face of this most accurate description of common-law plead ing in its essence, the assertion that it requires a statement of the actual facts constituting the cause of action is seen to be as fictitious as many of its ordinary allegations, one of the fictions which make up so large a part of the system itself.

[Some recent utterances of the Supreme Court of Missouri are interesting in this connection. In Estes v. Desnoyers Shoe Co. (1900), 155 Mo. 577, 56 S. W. 316, the court said: "The petition, however, was obnoxious to a salutary rule of pleading which would have rendered it liable to demurrer if the demurrer had covered that feature. The defect in the petition is that it sets out the contract sued on in hæc verba instead of pleading it by its legal effect. That form of pleading is to be considered none the less bad because it is not of uncommon prac

tice even among learned lawyers. The rules of good pleading require that the instrument relied on should be pleaded by its legal effect, which requirement is not for mere form, but rests on substantial reason. The pleading is addressed to the court and should state the pleader's theory of his case, not leaving it to the court to construct a theory as best it may from the evidence set out, and not leaving his adversary in the dark as to what the theory advanced is, or what construction the pleader puts upon his contract. It is not a contest in which the combatants may catch as they can. If the contract is inartificially drawn so that its meaning or effect is obscure, it is all the more important that the pleader advanc ing it should take the responsibility of stating its legal effect, leaving the instrument itself to be used as evidence, which is its only office." And in the still later case of Reilly v. Cullen (1900), 159 Mo. 322, 60 S. W. 126, the court said that a petition which alleged a contract in hæc verba instead of by its legal effect left the issue uncertain, that the code system of pleading furnished no authority for such uncertainty, and that such a petition would be held bad on demurrer on the ground that it did not state facts constituting a cause of action.]

express, and in fact no form of common-law action provided for a recovery upon an implied promise; in every case of assumpsit, either general or special, on the common counts or otherwise, the defendant was represented as having expressly promised. For a considerable period of time after the invention of assumpsit, undoubtedly the contracts enforced by its means were all express, so that the averment of the declaration accorded with the actual transaction between the parties, as shown by the evidence. In the course of time, however, cases were brought before the courts, in which the right of action on the one hand, and the liability to pay on the other, depended upon a moral and equitable duty of the defendant, arising, not from any promise made by him, but from the acts, circumstances, and relations existing between him and the plaintiff. The courts were thus placed in a dilemma. The obligation of the defendant and the right of the plaintiff were founded upon the plainest principles of equity and justice, and to deny their existence was impossible. Still, there was no action directly appropriate for their enforcement. None of the actions ex delicto could be used, since there was no tort; debt was also out of the question, because the amount claimed was unliquidated damages; even assumpsit was not applicable, for there was no promise. In this emergency the English judges were true to their traditions, and to all their modes of thought. Instead of inventing a new action, and applying it to the new class of facts and circumstances, they reversed the order, and applied the facts and circumstances to the already existing actions. They fell back upon their invariable resource, the use of fictions; but went farther than ever before or since; and, instead of inventing a fictitious element in the action, they actually added a fictitious feature to the facts and circumstances from which the legal right and duty arose. They selected the

existing action of assumpsit as the one to be employed in such classes of cases; and since that action is based upon a promise, and since the declaration must invariably allege a promise to have been made, the early judges, instead of relaxing this requirement of pleading, actually added the fictitious feature of a promise which had never been made to the facts which constituted the defendant's liability. In other words, the courts invented the notion of an implied promise, in order that the cases of liability and duty resulting from certain acts, omissions,

or relations where there had been no promise, might be brought within the action of assumpsit, and be tried and determined by its means. There is no more singular and instructive incident than this in the whole history of the English law, and it has a most direct and important connection with the practical rules of pleading under the reformed procedure of the codes. We see that the notion of an implied promise as the ground of recovery in these cases of moral and equitable duty did not exist prior to and independent of the action which was selected as the proper instrument for its enforcement; on the contrary, the action already existed the distinguishing feature of which was the allegation of a promise made by the defendant, and a fictitious or "implied" promise was invented and superadded to the actual facts constituting the defendant's liability, for the simple purpose of bringing his case within the operation of that action and its formal averment.1

1 It would be both interesting and instructive to trace this doctrine of implied promises through the whole series of cases, from its first suggestion as a fiction of pleading until it became firmly incorporated into the general theory of contracts; but my limits will not permit such an excursion. I quote, however, the conclusions reached by Judge Metcalf in his exceedingly able work upon Contracts, as an authority for the position taken in the text. After an analysis of numerous early cases, he says: As there will be no occasion to advert hereafter to the fictions adopted in setting forth the plaintiff's claim in declarations in the action of assumpsit, it may not be amiss to present a succinct view of those fictions, and of the reasons on which they are founded. The usual action on a simple contract in old times was debt. The declaration in that action averred in substance that the defendant owed the plaintiff, and thereupon an action had accrued, etc. No promise was alleged, for no promise was necessary. But the defendant was allowed to wage his law. To avoid this wager of law, a new form of action was devised, to wit, the action of assumpsit, in which a promise of the defendant was alleged, and was indispensable. A declaration which did not aver such promise was insufficient

even after verdict; and the law is the same at this day. The promise declared on is always taken to be express. In pleading, there is no such thing as an implied promise. But as no new rule of evidence was required in order to support the new action of assumpsit, it being necessary only to prove a debt, as was necessary when the action was debt, the fictitious doctrine of an implied promise was introduced; and for the sake of legal conformity it was held, when the defendant's legal liability was proved, that the law presumed that he had promised to do what the law made him liable to do. . . . A single example will illustrate these two fictions [the author had described the kindred fiction of an (implied) request alleged to have been made.] A husband is bound by law to support his wife; and if he wrongfully discard her, any person may furnish support to her, and recover pay therefor of the husband. In the action of debt, there would be no necessity to allege a promise in such a case. But the husband might wage his law, and defraud the plaintiff. In the action of assumpsit, the furnishing of the supplies must be alleged to have been by the plaintiff at the husband's request, and a promise of the husband to pay must also be alleged. But proof of the actual facts

§ 407. *513. Outline of Proposed Discussion of Reformed Procedure. Having thus described the three types of pleading in existence when the reformed procedure was inaugurated, I now proceed to examine the system introduced by that procedure itself. In pursuing this investigation, I shall endeavor, first, to ascertain the essential and general principles upon which it is founded; secondly, to determine the manner in which the plaintiff should set forth the affirmative subject-matter of the action in his complaint or petition; and thirdly, to apply the results thus reached to the most important and common instances of action and remedy. Although I shall aim at a close conformity with the true spirit and intent of the statutory legislation, yet this intent will be sought for in the decided cases which have given a judicial interpretation to the codes. It must be conceded at the outset that there is an irreconcilable conflict between two classes of decisions, not only in mere matters of detail, but in 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.

§ 408. *514. Two Theories as to the Relation between the New and Old Systems. 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

supports both these allegations. The husband, being in law liable to pay, is held to have (impliedly) made both the request and the promise." Metcalf on Contracts, pp. 203, 204. This origin of the implied promise, of its invention as a fiction in order to bring the case within the operation of "assumpsit" throws a strong light upon the question, whether,

in an action to enforce such a liability under the codes, the plaintiff should, in addition to the actual facts from which the defendant's liability arises, also allege a promise to have been made by him. The promise was simply a formal incident of the particular action in the old system, and is certainly no more than such an incident in the new.

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 judi