A TREATISE
ON THE
PRINCIPLES
OF PLEADING
IN CIVIL ACTIONS:
COMPRISING
A
SUMMARY VIEW OF THE WHOLE
PROCEEDINGS IN A SUIT
AT LAW.
BY
HENRY JOHN STEPHEN,
SERGEANT
AT LAW.
____________________
. . . . Res antiquĉ
laudis et artis
Ingredior, sanctos
ausus recludere fontes.--Vide.
____________________
THIRD
AMERICAN
FROM
THE SECOND LONDON EDITION:
WITH
A PREFACE, AN INTRODUCTION, A DISSERTATION ON PARTIES
TO
ACTIONS, AND NOTES.
BY
SAMUEL TYLER, LL. D.,
PROFESSOR
IN THE LAW DEPARTMENT OF COLUMBIAN COLLEGE,
WASHINGTON,
D. C., AND AUTHOR OF THE MARYLAND SIMPLIFIED PLEADING,
ETC.,
ETC.
____________________
WASHINGTON,
D. C.:
WALTER
C. MORRISON,
LAW-BOOK PUBLISHER AND
SELLER.
1882.
Copyright, 1871, by
W. H. & 0. H. MORRISON.
____________________
Copyright, 1898, by
WALTER C. MORRISON.
____________________
Entered according to the Act of
Congress, in the year 1871, by
W. H. & O. H. MORRISON,
In the Office of the Librarian of
Congress at Washington, D. C.
____________________
Page
v
PREFACE.
Stephen on Pleading
is one of the great works in English law. Common-law pleading stands forth in it
in its finished form. It places Mr. Stephen in the foremost rank of juridical
thinkers. Besides its theoretic excellence, exhibiting the principles of
pleading cohering in a logical system, the work is rendered eminently practical
by introducing a summary and connected account of the whole proceedings in a
suit, in which the end that pleading subserves in litigation, and the forms
through which it works, are distinctly presented. This edition of the work has
been prepared especially for American students of law. It is, nevertheless, as
will be present'y seen, the best edition for the practicing
lawyer.
In the year 1824
Mr. Stephen published the first edition of his work. In the year 1827 he
published the second edition; and in the advertisement to that edition says:
"This work, as its title imports, is in its main design elementary and
institutional, and intended for the use rather of those who are exploring the
principles, than of those who are engaged in the practice of pleading. But us
there is reason to believe that it has proved in some measure acceptable to the
latter class of readers also, the author has endeavored to adapt it better to
their purposes, by introducing into this second edition some additional matter
of a practical kind. This is contained, however, for the most part, in notes at
the foot of the page, and does not at all derange or in any degree affect the
original plan of the work.
"With the same view
the index has been considerably enlarged and a table of cases
prefixed."
In this second
edition Mr. Stephen gave his matured view of the system of common-law pleading,
and never attempted to do anything more towards making it more
complete.
In the year 1828,
the next year after the publication of this second edition of Mr. Stephen's
book, the British government appointed a commission of
eminent lawyers, amongst whom was Mr. Stephen, to inquire into the practice and
proceedings in the superior courts of common law. These commissioners made a
report in the year 1833, recommending important changes in the system of
pleading; and by acts 3 and 4 Will. IV. c. 42, power was given to the judges at
Westminster to carry into effect the recommendations of the commissioners. Great
changes in the forms of pleadings were accordingly effected by the pleading
rules of Hilary Term, 1834, passed by the
judges.
In the next year,
1835, Mr. Stephen published a third edition of his book, conformed to the
requirements of the pleading rules of Hilary Term, 1834; and other editions,
conformed to the same rules, were published in 1838, 1843, and 1860. And all the
editions published in the United States since the year 1831, when the second
edition was published in this country, are reprints of these expurgated
editions, and are, and have always been, inapplicable to the practice of
American courts, and unfit for the American student. And what detracts still
more from these editions is, that in the year 1850 the British government
appointed another commission of law reformers, and upon their recommendations
statutes were passed by Parliament in 1852, 1854, and 1860, called
common-law-procedure acts, by which, and the rules of court made under them,
much more thorough changes were effected in pleading than those made by the
pleading rules of Hilary Term, 1834, which have made all the editions of Stephen
on Pleading as inapplicable to the practice of the English courts as the
expurgated editions are to the practice of American courts, unless the seventh
edition, by Mr. F. F. Finder, published iu 1866, which I have not seen, is
conformed to these later reforms.
From the foregoing
statement, it is seen that all editions of Stephen on Pleading, except the first
and second, are, so far as American courts and American lawyers are concerned,
mutilated editions. Therefore it is that the second edition of the book is now
reprinted, it being the best manual for law students, and a most efficient guide
in the practice of American courts. An introduction, discussing the relative
characteristics of the Roman civil law and the common law of England, and
pointing out the differences in their respective procedures, has been added, and
also a dissertation on parties to actions, for the instruction of students of
law. Little else has been added, as this second edition was so fortified by
authorities collected by Mr. Stephen himself, that for more than forty years the
book has been received as the surest of guides in pleading, both in English and
American courts.
The love of
innovation induced the State of .Now York, some years ago, to abrogate
common-law pleading, and introduce a code of procedure for the regulation of
litigation in her courts; and notwithstanding the lamentable confusion and
uncertainty, and the greatly increased expense which has thereby been brought
into the administration of justice in that State, other States have followed in
her track of barbaric empiricism. Mr. Justice Grier has, from the bench of the
Supreme Court of the United States, rebuked the folly of abolishing common-law
pleading, and substituting the common-sense practice, as it may be called, in
its stead. "This system, (says that able judge,) matured by the wisdom of ages,
founded on principles of truth and sound reason, has been ruthlessly abolished
in many of our States, who have rashly substituted in its place the suggestions
of sciolists, who invent new codes and systems of pleading to order. But this
attempt to abolish species and establish a single genus is found to be beyond
the power of legislative omnipotence. The result of these experiments, so far as
they have come to our knowledge, has been to destroy the certainty and
simplicity of all pleadings, and to introduce on the record an endless wrangle
in writing, perplexing the court, delaying and impeding the administration of
justice." This strong condemnation is more than justified by the experience of
the New York courts, as may be seen in the chaos of the reports of the code
practice in that State. And the evil effects of the code on the administration
of law in New York has been signalized in a recent letter from Mr. Charles
O'Conor, published in the Albany Law Journal. It is stated in that letter, as
the effect of the decisions of the courts, that because of the mixture of law
and equity by the code, a case may begin as a common-law case, with a jury
impanneled to try it, and if, at the close of the testimony, a case in equity
instead of a common-law case, is proved, the judge may dismiss the jury and try
the case himself, as chancellor.
And the confusion in practice is increased by the want of logical skill in the
lawyers trained in the code practice. "All the lawyers (says Mr. O'Conor) who
have been admitted to practice in this State for the last
twenty years are conversant with the code, and, of course, are not experts in
the old common-law practice and pleading. Most of them are entirely ignorant of
it, and you may imagine that the code could not easily be displaced by any
attempt at reaction. The courts of the United States do not recognize the code,
but adhere to the old practice, with its settled distinction between law and
equity. This circumstance often leads to much confusion, as you may see
illustrated in some reported decisions of the Supreme Court. It is truly
laughable, to one conversant with both systems, to see the blunders into which
lawyers of great ability, who have come to the bar within the last ten or
fifteen years, sometimes fall in framing a declaration, plea, or subsequent
pleading at common law in the circuit court of the United
States.
"I think the code
(continues Mr. O'Conor) contains, as I best recollect at this moment, only one
thing which can be called new in principle, and this is an attempt at an
absolute impossibility in prescribing the rule of pleading. It declares, in
substance and effect, that you shall not plead, as in the old system, the
conclusions in law or in reason, from the facts of the case, and at the same
time it prohibits you from stating or detailing the evidence merely on which you
rely. You are required to state the 'facts' which that evidence conduces to
prove. Here, under the name of 'facts,' we find some things required to be
stated which are neither, in the vulgar sense of the word, the mere fact, or
transaction, or event which did occur, and can be proven by direct evidence, nor
the general, rational, or legal conclusions from such fact, transaction, or
event.
" Now, according to
my conception, it requires somebody much more wise or more subtle than myself,
or any special pleader I have ever been acquainted with, to define or find out
what it is that should be stated in a regular pleading, drawn in compliance with
this requisite of the code. I am not aware that any one has ever attempted to do
it. The common practice in this State is, to tell your story precisely as your
client tells it to you; just as any old woman, in trouble for the first time,
would narrate her grievances; and to annex, by way of schedules, respectively
marked A, B, C, &c., copies of any papers or documents that you imagine
would help your case. This is most emphatically a fair description of all the
pleadings which come from the office of the chief codifier
himself. A demurrer to any pleading under
the code is a very dangerous step, because it is utterly impossible
for the keenest investigator to determine, in most cases, what any other reader
than himself will understand to be the import of the pleading, if it be demurred
to."
It is at this time
especially important that students of law be trained in common-law pleading, and
be convinced of its wisdom as a means of administering justice, in order that,
as men who influence public opinion, they may, if possible, gradually restore
common-law pleading to its former efficiency in the courts. At all events, their
training in common-law pleading will enable them, in States where it is
abolished, to relieve in some measure the administration of justice from the
embarrassments with which it has been environed by codes. For a knowledge of
common-law pleading is not only of importance in States whose wisdom has
retained it, but also in States where it has been abolished. A machinery of
rules and forms is indispensable for an enlightened administration of law, and
one familiar with those rules and forms that are applicable to the exigencies of
litigation is more capable than one not familiar with them of efficient practice
in courts where such machinery is not used.
" Nor are the works
of common-law pleading (says Professor Cooley, in the preface to his able
edition of Blackstone's Commentaries) superseded by the new codes which have
been introduced in so many of the States. A careful study of those works is the
very best preparation for the pleader, as well where a code is in force as where
the old common-law forms are still adhered to. Any expectation which may have
existed that the code was to banish technicality and substitute such simplicity
that any man of common understanding was to be competent, without legal
training, to present his case in due form of law, has not been realized. After a
trial of the code system for many years, its friends must confess, that there is
something more than form in the old system of pleading, and that the lawyer who
has learned to state his case in logical manner, after the rules laid down by
Stephen and Gould, is better prepared to draw a pleading under the node which
will stand the test on demurrer than the man who, without that training,
undertakes to tell his story to the court as lie might
tell it to a neighbor, but who, never having accustomed himself to a strict and
logical presentation of the precise facts which constitute the legal cause of
action or the legal defense, is in danger of stating so much or so little, or of
presenting the facts so inaccurately, as to leave his rights in doubt on his own
showing. Let the common-law rules be mastered, and the work under the code will
prove easy and simple, and it will speedily be seen that no time has been lost
or labor wasted in coming to the new practice by the old
road."
Common-law pleading
should be simplified, but not abolished. A love of subtlety and of system
caused, in the course of time, useless refinements to be ingrafted upon the
common-law pleading. But when the system of pleading was fully matured, and what
is substantial and what is only incidental could be clearly discriminated from a
practical point of view, a process of simplifying it, by cutting off these
refinements, was begun in England. No less than twelve statutes, beginning in
the reign of Edward III, and coming down to that of George I, had been passed by
Parliament before we separated from England, to remedy technical inconveniences.
But the system, as we introduced it into this country, had still many
over-refinements. And it is because of these mere excrescences that the system
became liable to criticism and, in some States, to overthrow. But England, where
enlightened opinion has so much influence, has reformed and not destroyed what
is as old as her jurisprudence, and has been in all ages deemed an especially
wise portion of her law procedure. By the common law procedure acts already
mentioned, and the rules of court made under their provisions, pleading has been
made as simple as possible, and justice has been thereby administered with
entire satisfaction to even the sciolist, who had the vain hope that every
litigant could be his own lawyer. But the ancient system of alternate pleadings,
eliminating irrelevant facts, and finally evolving the naked question, whether
of fact or of law, really in dispute between the parties, and presenting it to
the proper tribunal for determination, is retained in all its integrity. The
State of Maryland, fourteen years ago, after having from colonial times used the
common-law pleading in its most technical form, followed the course of England,
and simplified the system, until the old lawyers at first feared that their pleadings, when they had drawn them, were erroneous, because of
their simplicity and naturalness. They could not help thinking that something
material was left out. It is to be hoped that other States will follow the
example of Maryland.
For the
common-law-procedure acts, and the rules of court made under their provisions,
the reader is referred to Day's Common-Law Acts; Smith's Action at Law, tenth
edition; and the 3d vol. Broom & Hadley's Commentaries on the Laws of
England, chap. xii.
For the Maryland
Simplified Procedure and Pleading, the reader is referred to Tyler's
Pleading.
Washington
City, January,
1871.
INTRODUCTION for the above book BY SAMUEL TYLER, LL.
D.
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