for mere notices of special matter and directions issued by a master under an omnibus summons. We are told, however, that the Council of the Incorporated Law Society, "whose members constitute the branch of the profession in closest touch with the details of procedure," appointed a large committee to consider the report and declare officially what was the opinion of the solicitors upon it as a body. This committee especially condemned the proposed abolition of pleadings and the summons for directions that was to help supplant them. (Samuel Rosenbaum in "Studies in English Civil Procedure," 63 Univ. of Pa. L. Rev. 273, 299.) Mr. Rosenbaum further tells us that at the outset the Rules Committee encountered difficulty in attempting to accomplish the abolition of pleadings "that brought their progress to a sharp halt." After mentioning the difficulties encountered in attempting to carry out this step he points out how the committee finally called in G. Baugh Allen, "the foremost pleader of the day." Allen's idea was to frame an Order containing only a few brief words of admonition to the pleader as to brevity, supplemented by a copious supply of forms, covering a varied assortment of causes of action, drafted in model style to serve as the standard to which pleadings should conform. Under the supervision of Sir Edward Fry Allen proceeded accordingly. "This is the story of the present English method of pleading by reference to the forms." (Id. 301.)

We may assume therefore that this course of action constituted a recognition of the importance of the pleading function and evidenced a realization that English jurisprudence is not ready to abandon the foundation laid by pleadings for the settlement of judicial controversies.

In the address cited above Chief

Justice Taft called attention to the English "summons for direction," requiring defendant to appear before a master or judge to settle the future proceedings in the cause, and to make an order as to the manner in which the case shall be carried on and tried. The Chief Justice then said: "I sat with Sir Willes Chitty, the learned and most effective Head Master of the King's Bench, and saw the solicitors and sometimes the barristers, come before him to shape up the issues, the pleadings and the directions for trial. He knocked the heads of the parties together so that a clear issue between them was quickly reached."

This latter personal observation of a distinguished American jurist is significant as well as illuminating. It goes to establish the English policy as not to allow legal actions to proceed aimlessly, without definite theories and issues, but to bring matters quickly to a head. The pleadings play a definite part in this. In the same address the Chief Justice spoke of the avowed object of the framers of the English rules to effect "a change in procedure which would enable the court at an early stage of the litigation to obtain control over the suit and exercise a close supervision over the proceedings in the action." The resulting "knocking together" of heads to bring legal controversies to an issue is only symbolic of the importance attached to prompt determination of issues.

Until recently, of course, Our American procedure has not known anything in the way of the summons for direction and the processes of shaping pleadings as thus employed in England. That machinery for grasping control of the case at its initiation has been absent. It might be said that for that very reason, there is all the more occasion for attaching to the pleadings the greatest importance as clearly

defining the theories and issues of the case, although it is arguable that with Rule 16, covering somewhat the same ground as the English summons for directions, on the books, the pleading function is greatly lessened in real importance. Rule 16, however, emphasizes rather than minimizes the necessity of accurate pleading.

In this connection significant expressions may be found in the opinions of distinguished English judges. In Thorp v. Holdsworth, 3 C. D. 637 (1876), Jessel, M. R., said: "The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules of Order XIX was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to definite issues, and thereby to diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing."

It is said in 81 Sol. Jour. 89 (1937): "How pleasant a thing and how rare it is, to hear, on occasion, learned counsel rise at the outset from behind a pile of papers and say to the learned judge: 'My learned friend and I are agreed that the only issue between him and myself is thus and thus. If he proves these facts and those, I admit that he succeeds on the facts. It will then be for me to establish the following proposition of law which, I will respectfully submit, will entitle me to judgment.'

"Is not this, in the last analysis, the ultimate function of pleadings?"

tion it would be along the line of concluding that authorities interpreting the codes have not viewed them as inaugurating any deepseated changes in former American pleading conceptions. It is commonly assumed that the codes did not set up an entirely new method of pleading but rather adhered to the broad principles of equity statement, assimilating the treatment of causes of action at law thereto. The codes have contained provisions relating to construction apparently calling for reversal of former common law rules whereby pleadings were construed strictly against the pleader, and, moreover, have also contained most liberal provisions as to amendment. In spite of these provisions, in so far as what might be termed "fact content" is concerned there has been a rather consistent disposition to require the same general pleading content as before. Reference to a few authorities will serve to illustrate this.

In Miller v. VanTassel, 24 Cal. 459, the court said: "The forms alone of the several actions have been abolished by the statute; the substantial allegations of the complaint, in a given case, must be the same under our Practice Act as are required at common law."

In Zeile v. Moritz, 1 Utah 283, the court said: "The Practice Act does not abolish the distinction between Law and Equity. This distinction is as broad as ever. The act affects the forms of the several actions alone. The substantial allegations of the pleadings must be the same as under the old system. Miller v. VanTassel, 24 Cal. 459, 463; Jones v. Steamship Cortez, 17 Id. 487. 'The abrogation of the ancient forms of pleading, and the establishment of a uniform system of remedies in the Courts, do not abrogate the distinction between Law and Equity, nor require that every cause of action should be set

bound to do more than answer the case in the mode in which it is put forward. If, indeed, relief is asked alternatively, either on the ground of fraud, or, failing that ground, then on some other equity, a plaintiff may fail on the first but succeed on the latter alternative. But, then, the attention of the defendant has been distinctly directed to it, and he has been called on to answer the case according to both alternatives." This doctrine was recognized by our own Supreme Court. In Eyre v. Potter, 15 How. (U. S.) 42, 14 L. Ed., 592 (1853), the court said: "It seems to be an established doctrine of a court of equity, that when the bill sets up a case of actual fraud, and makes that the ground of the prayer for relief, the plaintiff will not be entitled to a decree, by establishing some of the facts quite independent of fraud, but which might of themselves create a case under a totally distinct head of equity from that which would be applicable to the case of fraud originally stated. In support of this position may be cited, as directly in point, the case of Price v. Berrington, decided by Lord Chancellor Truro, in 1851. Vide English Law and Equity Reports, Vol. VII, p. 254." See also the related cases mentioned under "Supreme Court expressions," note 44, ante.

Of course the possibility in equity of framing a bill with a double aspect made possible a breadth of issue greater than that permitted in common-law procedure. In Hardin v. Boyd, 113 U. S. 756, 28 L. Ed. 1141, 5 Sup. Ct. 771 (1884), it was held to be a well settled rule that the complainant, if not certain as to the specific relief to which he is entitled, may frame his prayer in the alternative, so that if one kind of relief is denied another may be granted, the relief of each kind being, however, consistent with the case made by the bill. This is not

the same thing as framing an entire pleading on theories of varying alternative facts. As suggested by the case just cited, although in equity a bill may be framed with a double aspect, the settled rule has been that in both aspects it must set forth the foundation for the same relief. Chinese American Restaurant Corp. v. Finigan, 272 Mass. 360, 172 N. E. 510.

We may assume that at least one reason for enactment of the codes was to escape such limitations as these. Not only did the codes purport to abolish forms of action and merge law and equity: they made many amendments obtainable almost for the asking and they introduced provisions calculated to thoroughly minimize the importance of variances from the allegations of the pleadings. Yet it is noteworthy that many codes sanction amendments only when they do not change substantially the claim or defense, thereby necessarily restricting departure from the original issues of the case.

In this connection mention should be made of section 274a of the Judicial Code (U. S. C. Title 28, § 397) adopted in 1915 and referred to under "In federal practice-Chief Justices Taft and Hughes," note 26, ante. In allowing amendment of pleadings to conform them to the proper forum, Congress thus gave sanction to change of theory within certain bounds, at least. Possibly this could be held to announce policy of such sanction, but it is to be doubted if this section should be so construed as to permit the introduction of new operative facts amounting to the statement of a different cause of action. In any event, the section as such is in practical effect superseded by the present rules, as pointed out in the note to Rule 1.

а

Perhaps one could with propriety adopt the words of Prof. Roswell

Magill, expressed in an article dealing with the Illinois Civil Practice Act: "It is practically impossible to generalize with respect to the many situations in which the defendant has answered; and, after the trial, the plaintiff seeks to recover on some legal theory different from that expressed in his complaint. Moreover, since this is a field in which code courts have reached very divergent results, any attempt at prophecy is hazardous." 1 Univ. of Chicago L. Rev. 171, 183.

51.

- Prof. Millar's comment. As has been said by Prof. Robert W. Millar: "The defendant, in justice, is entitled to notice not only of the facts but also of the proposed theory or theories of recovery, for his preparation on the law is quite as important as his preparation on the facts." 28 Ill. L. Rev. 460, 468. Prof. Millar, who in the article cited is commenting on various phases of the Illinois Civil Practice Act, goes on to say: "The solution of the difficulty, it seems to me is comparatively simple and could be effected by a supplementary rule to be adopted by the Supreme Court, requiring the pleader, after stating the facts, to set down in concisely worded, numbered propositions, the theory or theories upon which he intends to rely. This is the Scottish system, and it is interesting to note that, without reference to the Scottish practice, and so far as appears, without any knowledge of it, the same idea was advocated in 1931 by a committee of the Association of the Bar of the City of New York." Prof. Millar then quotes the proposal of this committee, as follows: "A party shall no longer be permitted to plead several causes of action or counterclaims arising out of a single transaction or connected set of facts but shall be required to make a single statement of the transaction or facts, followed by a

statement of the various legal theories upon which he claims to be entitled to recover under those facts."

After discussing the statement of Lord Parker, in Banbury v. Bank of Montreal, [1918] A. C. 626, 709– 710, in which fault is expressed with a system wherein "the plaintiff is allowed to prove what he likes and set up any case he can," Prof. Millar says: "At any rate, so long as there is attached to pleadings that degree of importance connoted by the new act, the pleadings should be made to subserve a maximum of usefulness. And this they are not doing if we strip away such factors of theoryidentification as have hitherto obtained without putting anything in their place. Fairness to the opposite party and economy of the trial court's time alike argue strongly for the advance definition here proposed."

See also comment by Prof. Millar in 50 Harv. L. Rev. 1017, 1040.

52.

-Point of view of the courts.

It may be said with confidence that if the ideal of code proponents has been to hold plaintiffs invoking the judicial power to no more than a bare statement of facts, to which, within very broad limits, subsequent adherence is unnecessary, such ideal has not been at all thoroughly realized. From one point of view this may be because of "able judges opposed to the spirit" of the codes (see Clark on Code Pleading, p. 47) but in justice to the courts thus criticized we should not be unmindful of their point of view. Judges administering the codes have been called upon to leap from a position of relative stability to one which, by hypothesis, lacks the circumscribing foundations of the old. Their office places them in a never-ending series of controversial middles. Code or no code, they enter each case unin