OF THE PRINCIPLES OF PLEADING UNDER THE CODES OF CIVIL PROCEDURE. BY GEORGE L. PHILLIPS, LL. D. CHICAGO: PREFACE. THE plan and purpose of this book are stated in the introduction. I shall here state the reasons for its preparation and publication. My study of procedure, and my experience, at the Bar and upon the Bench, have satisfied me that a complete exposition, analytic and synthetic, in brief and convenient compass, of the basis, the philosophy, and the application, of the principles of pleading under the Reformed American Procedure, is a desideratum in the literature of the law. The science of pleading has been neglected in legal literature, in legal instruction, and in the practice. Its neglect in the schools, and in the practice, is largely due to the want of a welladapted text-book. The result is, that young men, upon their entrance into the profession, have not learned, and do not understand, the principles upon which the substantive law is to be applied to operative facts; and in practice, the tendency has been to follow distinct provisions of the codes, literally, rather than to interpret and apply them as parts of an entire and scientific system. The over-fullness and prolixity of pleadings under the codes is proverbial; it is a needless hindrance in judicial procedure, and is as reprehensible as it is needless. Excessive statement in pleading comes from conscious uncertainty as to what is requisite, and what is sufficient. The ideal code pleading is brief and simple; but its brevity and simplicity come only from adherence to the scientific principles of the system. This needless fullness and prolixity can be avoided, and this characteristic simplicity, terseness, and brevity can be secured, only by an intelligent understanding of the true philosophy of the new procedure. The common-law system of pleading, in its finished state, was regarded as a marvel of inventive genius, a masterpiece of subtle refinement, and a model of logical exactness. It held high rank as a means of intellectual and legal discipline; it was a leading topic in legal education; and mastery of this legal technique was a mark of sound and thorough training. Not so with the reformed system. It is generally regarded as wanting in educational value; it has low rank in the curricula of our law schools; and thorough mastery of its principles is exceptional, even among lawyers of learning and experience. The truth is, however, that the reformed system rests upon broad and rational principles; that it is thoroughly scientific; that its study is highly instructive and disciplinary; and that thorough mastery of it by the profession would expedite procedure, would elevate and dignify the practice, and would foster the exercise of care and precision in the administration of justice. The profession has been amply provided with books of forms and precedents. These are helpful in their place, but they are too often followed without intelligent regard to the principles upon which the action or the defense should be placed. General forms may suggest matters for consideration, an order of statement, and modes of expression; they can seldom be exact models in a particular case; they do not teach the science of pleading, nor do they fortify the pleader for the new and ever-varying conditions that must at times confront him. A pleader should be able to separate operative facts from probative facts; to determine from the operative facts the legal nature of the right involved, and of the injury done or threatened; to distinguish between what is essential and what is superfluous in the statement of such right and the invasion thereof; to determine the kind of remedy most available, and the persons to be made parties. He should not only know what is requisite, and what is sufficient; he should know why it is so, and why, upon principle, it should be so. A pleader thus fortified may well dispense with forms and precedents, and he may safely make them subservient in the statement of a right of action or a defense. The liberality of our courts in allowing amendments of pleadings has done much to cultivate indifference both as to the pleadings in a cause, and as to the science of pleading. This indulgence of the courts makes inefficient pleaders; it prolongs litigation, and loads our system of judicial altercation with the odium of a delay that is really caused by departure from its principles. The new procedure has dispensed with authoritative forms and technical language, and requires each case to proceed upon a plain statement of its operative facts, made in "ordinary and concise language." Some have mistaken. this for a relaxation of care, method, and skill in pleading. And if we are to judge from the files of our courts, the notion obtains that the requirements of the new procedure may be satisfied by a rambling narration of evidential facts and legal conclusions, constructed without regard to perspicuity, to sentential structure, the collocation of phrases, or the sequence of ideas. There could hardly be a greater mistake. It has led to much vagueness and uncertainty ; it has caused the courts much needless labor litigants much needless expense, has prolonged litigation, and has sometimes occasioned a miscarriage of justice. Analytical Jurisprudence-the scientific exposition of the nature and sources of rights and of law, and of the means whereby the law effects the conservation of rights— has made material progress in recent times, and is carrying its scientific generalizations into the various fields of positive law, and is furnishing bases for a more orderly and systematic exposition of principles than has heretofore been possible. In no department is such help more needed or more available than in an exposition of the principles of the reformed system of pleading; yet there has been no attempt to make this advance in jurisprudence subservient in a methodical and scientific treatment of pleading. These considerations have induced me to attempt a scientific exposition, in brief and compendious form, of the basis, the philosophy, and the application, of the principles of pleading, old and new, embodied in, or contributory to, what is commonly called "Code Pleading." |