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 A Practical Program of Procedural Reform

451

of discretion and nothing should depend

In consequence, we may lay down

on or be obtainable through the latter

as a further principle: IV. The court should be able at all

class except the securing of such oppor tunity." Another object in drafting a practice act should be to insure trial of the case, rather than the record. Our attitude of

record-worship, partly a remnant of the old mode of determining causes, so far as possible, by some arbitrary, mechanical agency, partly a survival of the old writ of error, now superseded in most states by the more modern appeal, and partly due to a just fear of fraud, when amendments could only be made by erasure of a parchment

record, the reasons for which have been obsolete for centuries,“ serves no useful

stages to try the case, not the record, and

except as a record of what has been done may be necessary to protect substantive

rights of the parties as the suit progresses, the sole concern of the court with respect to the record should be to see to it that at the termination of the litigation it records the judgment rendered and the

causes of action and defenses adjudicated. As a corollary of the foregoing prin

ciple, pleadings should exist, not to furnish a necessary formal basis for the judgment, but solely to afford notice to the respective parties. Professor Whittier has argued this in a recent

end and should be abandoned. No cause which has been heard on evidence

paper which deserves careful reading.“I

should be reviewed solely upon pleadings and, if a case was made at the trial,

sition is discussed as follows :—

the question should be whether the adverse party was fairly notiﬁed thereof and had a fair chance to meet it and to present his own case, not whether the

record would sustain a judgment at common law.“ “Judge Allen puts the same idea thus: "The essentials of procedure are fair statements of the claims of the parties, reasonable notice of every hearing at which any question is to be presented for decision. and a fair op rtunity tn roduce evidence and be heard on t e facts and t e law; and these the legislature should require. Hard and fast rulesare of pleading in minor ticulars far moreand likellyrocedure to prevent thanpar to facilitate the administration of justice." Address. "The Revised Code of Procedure in Kansas." before the Missouri Bar Ass'n. September 18, 1909, 4. Bl. Comm., 409-410. p. “3 “ For an examgle of tryin the case. rather than the record. see yams v. tuart King (1908), 2 K. B. 696. Here defendant had given plaintiff a check in a betting transaction. Afterward in consideration that plaintiff would not present the check and injure defendant's credit, defendant promised to pay it. The action, according to the endorsement on the writ. which stood for a plead ing, was on the consideration for which the check was given. The trial court held that although there could be no recovery upon the consideration for the check or upon the check itself, because the tran saction was a wager, yet as the evidence showed the new contract, upon a new consideration, to pay the check, there could be a recovery upon that contract, and rendered judgment accordingly. On appeal, this was afﬁrmed, the Court of Appeal

In my paper already cited, the propo “What is claimed now is that pleading separates issues of fact from those of law. But it does so most imperfectly. What is accomplished in this direction by the common counts and general issue? On the other hand, where the declaration does not set out all the elements of a cause of action and a de murrer is interposed, the separation of law and fact is formal only. In substantial result,

nothing

has

been

achieved.

It

is

rare indeed that a cause may be disposed of ﬁnally upon the questions of law raised by demurrer. Others insist upon pleadings con taining all the elements of a legal statement of the case as necessaryto a proper record and to give to litigants the advantage of a plea of res judicata, if molested again for the same cause. But pleadings need not and do not perform this function. who can tell from a record in assumpsit, with common counts,

plea of the general issue, verdict and judg ment, what was in fact tried and adjudged? Long ago men resorted to extrinsic evidence for that purpose. On the other hand, there are many jurisdictions where claims against the estates of deceased persons are litigated saying that in such a case the judge should make or direct a formal amendment, so that the record would show what was the basis of the judgment rendered. “Judge Gilbert and Illinois Pleading Reform, 4 Ill. Law Rev., 178.