A study of "the code" in this broad and generic sense is, indeed, essential to an adequate understanding of every particular code. Only by a comparison of different individual codes can those features which are accidental be distinguished from those which are fundamental to the system. The decisions themselves show how invaluable such comparisons are, for the courts of the various code states constantly refer to cases involving the interpretation of similar provisions of other codes. Each jurisdiction has developed its own precedents in pleading, but this development has taken place in the light of the experience of other jurisdictions. There is thus a unity running through the cases which forms a substantial basis, and constitutes a sufficient reason, for treating code pleading as a congeries of definite principles of wide application.

SECTION 2. THE OCCASION FOR THE DEVELOPMENT
OF THE CODE.

The true meaning and scope of any reform may often be profitably investigated through a study of the causes which brought it into being. Code pleading was distinctly and confessedly a protest against the technicalities of common law pleading. So far, therefore, as one understands what those technicalities were, will he know what code pleading was intended to be.

At the time when the code was devised, common law pleading had already gone through a considerable process of intelligent reform in England, but in this country much less had been done. The system of procedure which America inherited from England was adopted as of the date of the political separation in 1776. At that time the two nations parted company, and thereafter such changes as took place in the laws of England were without direct effect upon the jurisprudence of this country. For three-quarters of a century after the declaration of political independence, the states of America were too busily concerned with financial, social and industrial problems to permit of any great activity in the direction of reforming legal procedure. The system taken from England served well enough, and the people manifested little inclination to take up the burden of revision. In England, however, a vigorous agitation began about 1828, and a number of parlia

mentary commissions were appointed to investigate the law of procedure and to suggest appropriate remedies for such abuses as should be found to exist. As a result, parliament passed an act in 1833, 3 and 4 Will. IV, Cap. 42, which provided that "the judges of the said superior courts, or any eight or more of them, of whom the chiefs of each of the said courts shall be three, shall and may, by any rule or order to be from time to time by them made, in term or vacation, at any time within five years from the time when this act shall take effect, make such alterations in the mode of pleading in the said courts, and in the mode of entering and transcribing pleadings, judgments and other proceedings in actions at law and such regulations as to the payment of costs, and otherwise for carrying intc effect the said alterations, as to them shall seem expedient."

Pursuant to the authority so conferred by parliament, the judges of the superior courts promulgated a set of rules at the Hilary term, 1833, embodying a considerable number of substantial changes in the common law system of pleading. These rules elaborately set forth the cases when it was proper and when improper to employ several counts in the same declaration, and when several pleas might or might not be used; they abolished technicalities in respect to the commencement and conclusion of pleas; they provided a simple form for the demurrer and joinder in demurrer; they specified and limited the scope of the general issues in the different forms of action; and in other respects they sought to mitigate the rigors of the technical rules of pleading. Later, in Trinity term, in the first year of the reign of Queen Victoria, some changes were made in these rules and a few new provisions added.

The reform thus accomplished was not sufficiently thoroughgoing to satisfy the public demand for simplicity in pleading, and it served merely to pave the way for the far more radical reforms of the Judicature Act of 1873.

The agitation which resulted in the rules of Hilary term doubtless exercised a two-fold influence upon public sentiment in this country. It called attention to the need for reform in pleading and it demonstrated the insufficiency of the changes introduced by those rules. They were never adopted in this country, but it became increasingly clear that the technicalities of common law pleading were growing obnoxious to litigants. The apparent failure of the

English efforts at reform encouraged radical suggestions, and a strong sentiment developed in this country toward the total abolition of the whole common law system and the substitution of a new system better adapted to modern needs and modern conditions. The objections made to the common law system of pleading were numerous, but the more important were the following:

1. It involved an arbitrary and useless distinction between actions at law and suits in equity.

2. The forms of action, such as trespass, trover and assumpsit, were mere surviving remnants of an outgrown system of writs, and the rules which defined their scope and character were utterly technical and useless.

3. The rules as to parties were crude and inequitable. 4. The formal, elaborate and bewildering language of the pleadings tended to obscure rather than to disclose the issues.

5. The technical distinctions between the different kinds of pleas, and the formal requirements in regard to them, were extremely burdensome and frequently resulted in a miscarriage of justice.

6. Limitations upon the right to join different causes of action in the same declaration, and restrictions upon the right to off-set demands, multiplied litigation without any compensating advantage.

7. The strict rule of construction applied to pleadings encouraged technical objections, and often obscured the merits of causes.

8. The system was productive of confusion through the common use of fictions and untrue allegations.

9. By means of the broad general issues defendants were enabled to conceal their real defenses.

10. Amendments to pleadings were not permitted with sufficient liberality.

Whether or not all of these objections were well taken, it is perhaps not important to determine. The system of code pleading was proposed and adopted to meet these and other similar faults which were deemed to exist in the common law system. It was adopted as a substitute for the older system, and not as an amendment of it. It purported to establish a system complete in itself. How far it. succeeded will perhaps appear in the course of the study about to be made.

SECTION 3. THE RELATION OF CODE PLEADING TO COMMON LAW AND EQUITY PLEADING.

It is clear from the wording of the codes, that the object sought to be accomplished was the complete abolition of the common law and equity systems of pleading, as such, and the substitution in their stead of a new and different system. Practically all the codes provide that the forms of pleading in civil actions in courts of record, and the rules by which the sufficiency of the pleadings is to be determined, are those prescribed by the code. Lest this positive statement give occasion for a possible doubt, many of the codes go so far as to add to it the further provision that the forms of pleading heretofore existing are abolished.

Acting, as they believed, in accord with this evident intention of the legislature, many judges attempted to treat the code as a unified, complete and exclusive system of pleading, which was to be viewed as entirely sufficient in itself without reference to any of the principles of pleading which had been developed throughout the long history of the common law. Under this conception of the code it was held to be not only useless, but, in fact, confusing and misleading, to attempt to interpret the code in the light of the systems which it had displaced.

The following extract from the opinion of Justice ALLEN, in Bush v. Prosser (1854), 11 N. Y. 351, well illustrates this view.

"The legislature, by the same act, also abolished all forms of pleading theretofore existing, and provided that thereafter the forms of pleading in civil actions in courts of record, and the rules by which the sufficiency of the pleadings were to be determined, should be those prescribed by that act. (§ 140.) So complete and thorough has been the departure from the former rules and forms of pleading, that it is hardly safe to rely upon analogies derived from that system in giving practical effect to the new. Based as the new is upon an entirely different theory, and having professedly different ends to accomplish, it is better, with a view to carry it out in its spirit, to consider it, as it is in truth, an entire new theory, to be construed and carried into effect according to its terms, and upon principles peculiar to itself. Difficult as it may be for a mind

trained to the logical and truly scientific rules of pleading under which justice has so long been administered in states and countries in which the common law has had sway, to cast aside all the rules which have been supposed to be founded in wisdom, and in practice to have accomplished a good purpose, for a new and confessedly imperfect scheme, it is safe to say that it must be done in order to give effect to the provisions referred to, and to give the system a fair trial; and that less injustice will be done in that way than by attempting to engraft the new upon the old, which can only be done to the prejudice of both."

On the other hand, the difficulty, if not the impossibility, of a sudden and complete abandonment of all the rules by which pleadings had been drawn and interpreted for centuries, compelled other judges to take a less radical view of the innovations of the code. It appeared to them that the primary object of all pleading was essentially the same, no matter what forms it took, and that the fundamental principles in accordance with which judicial controversies were to be laid before courts must inhere in the nature of the controversies themselves. The facts upon which litigating parties relied must be clearly and freely presented to the court, no matter what system of pleading was employed, and the points of difference between contending litigants must be exhibited. To do this required an exact use of language, a logical arrangement of allegations, a clear drawing of issues. No system of pleading could do away with the necessity for these things; therefore, why assume that the legislature intended to destroy at a blow the results of generations of labor bestowed upon the art of attaining these indispensible ends?

The opinion of SAMUEL L. SELDEN, one of the justices of the Supreme Court of the state of New York, in Knowles v. Gee (1850), 8 Barb. 300, 4 How. Pr. 316, is an excellent illustration of this view of the code. In the course of the opinion he says:

"It cannot be denied that the legislature, by adopting the forms of pleading heretofore in use in the courts of chancery, has given unequivocal evidence of a preference for those forms over those of the common law.

"On the other hand, the abolition of the only court in which those, forms were used, the transfer of their jurisdiction to the courts of common law, and the retaining of