Page:Harvard Law Review Volume 10.djvu/557

531. By Charles M. Hepburn, of the Cincinnati Bar. Cincinnati: W. H. Anderson & Co. 1897. pp. xvi, 318.

Mr. Hepburn is an ardent advocate of the merits of code pleading, or this book would not have been written. His arraignment of special pleading is very severe; but that the conclusions he reaches are based on a careful historical study of the matter is clear. The inadequacy of common law pleading is attributed to the fact that development was entirely arrested in its early stages, while the substantive law continued its wonderful growth unchecked. This produced an " inveterate incongruity between our procedure and our substantive rights." This it was that gave force to the movement in this century for a reform of procedure. It is interesting, however, to notice a similarity between the course of code pleading and of common law pleading. A failure to act according to the spirit of the codes has produced a system that is now exceedingly technical in many respects, due largely to a conservative following of forms, while Mr. Hepburn himself points to a case of about 1292 as a model of the simplicity and directness that code pleading should attain: "One Alice brought a writ of debt against B., for that she gave him twenty pounds worth of chattels by reason that he was to marry her; and he did not marry her."

The adoption of the reform met the greatest opposition in the conservative spirit of the profession. New York's code was the first, and it became the model for the others that have followed in this country. The commissioners who drafted it did their work in five months, and the legislature quickly enacted it into law, to give the reform a firm standing before the opposition could effectively organize for its defeat. Such a code could not be perfect, even if perfection is ever to be expected. Though the necessary amendments have been numerous, they have not been in regard to matters of the greatest importance; and Mr. Hepburn considers the success of the code to have been greater than could fairly be looked for.

The development of the reformed procedure in this country is treated in its three phases, of the development in the code states, twenty-seven in all, in the quasi-code states, and in the federal courts. Then there is the very different development that has taken place in the British Empire. A knowledge of the latter cannot but prove instructive, and probably but little is known as to it on this side of the water. For instance, see the provisions to secure expedition and brevity (p. 211 et seq.), which are apparently much more effective than anything that has been devised here.

The statement that code pleading is as much a science as common law pleading is undoubtedly true. The pleader must understand the essentials of his case as thoroughly as ever, or he cannot hope to frame a perspicuous complaint. But this has not been the practice. Attorneys have found it more convenient to intrench themselves behind really immaterial allegations, which might help them out, than to give careful study to a case; and so the objects of reform have been largely defeated. If, then, code pleading has come to stay, (and this can hardly be doubted, for see page 131 as to the movement for reform in New York,) every professional man should understand the questions involved in a system of code pleading, or he cannot co-operate in and appreciate the work of reforming present systems. To take one out of the narrow path of prac-