ceived to be the legal effect of these facts. The "issuable" facts, in the contemplation of the common-law system, were not the actual controlling facts as they really occurred, and as they would be proved by the evidence, from which the law derived the right of recovery they were the legal aspect of those facts, not strictly the bare conclusions of law themselves derived from the circumstances of the case, but rather combinations of fact and law, or the facts with a legal coloring, and clothed with a legal character. The result was, that the "issuable " facts as averred in the pleading were often purely fictitious; that is, no such events or occurrences as alleged ever took place, but they were represented as having taken place in the manner conceived of by the law. The pleader of course set forth his own view of this legal effect under the peril of a possible error in his application of the law to his case; if a mistake was made in properly conceiving of this legal effect, or, in other words, if the facts established by the evidence did not correspond with his opinion as to their legal aspect stated in the declaration, entirely fail.1

"

1 In corroboration of these conclusions, I quote a paragraph from a series of exceedingly able articles upon the English Judicature Bill, which appeared in the "Saturday Review" during the year 1873, and were correctly attributed to one of the foremost English barristers as their author. While discussing the pleading which ought to be introduced, he describes the common-law methods by way of contrast, and, among others, the following as one of its features: The first striking difference is this, that, on the common-law plan, a plaintiff is required to state, not the facts, but what he considers to be the legal effect of the facts. If his advisers take a wrong view of a doubtful point, and make him declare, say, for goods sold and delivered when the real facts, as proved, only make a case of goods bargained and sold, the unlucky plaintiff is cast, not because he is not entitled to recover, but because he has not put his case as wisely as he might have done. In practice, dangers of this kind are mitigated, though by no means invariably escaped, by inserting a multitude of counts, all giving slightly different ver

the plaintiff's suit would

sions of the same transaction, in order that on one or other of them the plaintiff may be found to have stated correctly the legal effect of the facts. The permission to do this was in fact a recognition of the plaintiff's inherent right to ask alternative reljef; but it was clogged by the absurd condition that he could only do so by resorting to the clumsy fiction of pretending to have a number of independent grounds of action, when he knew that he had only one, but did not know exactly what the court might consider the legal effect of his facts to be. This was not only unscientific and irrational, but, in some cases, it has led to enormous expense by compelling a plaintiff to declare on, and a defendant to plead to, scores of fictitiously differing counts, when there was only one matter in dispute between them. We do not suppose that the greatest zealot among special pleaders would say that such a queer scheme as this is preferable to one under which the plaintiff states the facts on which he founds bis claim, and asks for such relief as their legal effect may entitle him to." "Saturday Review," April 12,

§ 512. The extent of these fictitious allegations in pleading, and their influence upon the form and growth of legal doctrines at large, are exhibited in a remarkable manner by the history of the action of assumpsit, and its effect in originating and developing the doctrine of implied promises and contracts. At an early day, the action of debt was the only one by which to recover for the breach of an unsealed contract; but the defendant was permitted to "wage his law," and by that means to greatly embarrass, if not to defeat, the plaintiff's recovery. To obviate this difficulty, the action of assumpsit was at length invented. The gist of this action was the defendant's promise; the distinctive averment of the declaration was the promise, of course express in form, and so indispensable was it, that, if the allegation was omitted, judgment would be arrested, or reversed on error, even after verdict in the plaintiff's favor. The promise was stated to have been express, and in fact no form of common-law action provided for a recovery upon an implied promise; in every case of assumpsit, either general or special, on the common counts or otherwise, the defendant was represented as having expressly promised. For a considerable period of time after the invention of assumpsit, undoubtedly the contracts enforced by its means were all express, so that the averment of the declaration accorded with the actual transaction between the parties, as shown by the evidence. In the course of time, however, cases were brought before the courts, in which the right of action on the one hand, and the liability to pay on the other, depended upon a moral and equitable duty of the defendant, arising, not from any promise made by him, but from the acts, circumstances, and relations existing between him and the plaintiff. The courts were thus placed in a dilemma. The obligation of the defendant and the right of the plaintiff were founded upon the plainest principles of equity and justice, and to deny their existence was impossible. Still, there was no action directly appropriate for their enforcement. None of the actions ex delicto could be used, since there was no tort; debt was also out of the question, because the amount claimed was unliquidated damages; even assumpsit was not applicable, for there

1873, vol. 35, p. 472. In the face of this most accurate description of common-law pleading in its essence, the assertion that it requires a statement of the actual facts constituting the cause of action is seen to

be as fictitious as many of its ordinary allegations, one of the fictions which make up so large a part of the system itself.

was no promise. In this emergency the English judges were true to their traditions, and to all their modes of thought. Instead of inventing a new action, and applying it to the new class of facts and circumstances, they reversed the order, and applied the facts and circumstances to the already existing actions. They fell back upon their invariable resource, the use of fictions; but went farther than ever before or since; and, instead of inventing a fictitious element in the action, they actually added a fictitious feature to the facts and circumstances from which the legal right and duty arose. They selected the existing action of assumpsit as the one to be employed in such classes of cases; and since that action is based upon a promise, and since the declaration must invariably allege a promise to have been made, the early judges, instead of relaxing this requirement of pleading, actually added the fictitious feature of a promise which had never been made to the facts which constituted the defendant's liability. In other words, the courts invented the notion of an implied promise, in order that the cases of liability and duty resulting from certain acts, omissions, or relations where there had been no promise, might be brought within the action of assumpsit, and be tried and determined by its means. There is no more singular and instructive incident than this in the whole history of the English law, and it has a most direct and important connection with the practical rules of pleading under the reformed procedure of the codes. We see that the notion of an implied promise as the ground of recovery in these cases of moral and equitable duty did not exist prior to and independent of the action which was selected as the proper instrument for its enforcement; on the contrary, the action already existed the distinguishing feature of which was the allegation of a promise made by the defendant, and a fictitious or “implied" promise was invented and superadded to the actual facts constituting the defendant's liability, for the simple purpose of bringing his case within the operation of that action and its formal averment.1

1 It would be both interesting and in structive to trace this doctrine of implied promises through the whole series of cases, from its first suggestion as a fiction of pleading until it became firmly incorporated into the general theory of contracts; but my limits will not permit such an

excursion. I quote, however, the conclusions reached by Judge Metcalf in his exceedingly able work upon Contracts, as an authority for the position taken in the text. After an analysis of numerous early cases, he says: "As there will be no occasion to advert hereafter to the fictions

§ 513. Having thus described the three types of pleading in existence when the reformed procedure was inaugurated, I now proceed to examine the system introduced by that procedure itself. In pursuing this investigation, I shall endeavor, first, to ascertain the essential and general principles upon which it is founded; secondly, to determine the manner in which the plaintiff should set forth the affirmative subject-matter of the action in his complaint or petition; and thirdly, to apply the results thus reached to the most important and common instances of action and remedy. Although I shall aim at a close conformity with the true spirit and intent of the statutory legislation, yet this intent will be sought for in the decided cases which have given a judicial interpretation to the codes. It must be conceded at the outset that there is an irreconcilable conflict between two classes of decisions, not only' in mere matters of detail, but in

adopted in setting forth the plaintiff's claim in declarations in the action of assumpsit, it may not be amiss to present a succinct view of those fictions, and of the reasons on which they are founded. The usual action on a simple contract in old times was debt. The declaration in that action averred in substance that the defendant owed the plaintiff, and thereupon an action had accrued, &c. No promise was alleged, for no promise was necessary. But the defendant was allowed to wage his law. To avoid this wager of law, a new form of action was devised, to wit, the action of assumpsit, in which a promise of the defendant was alleged, and was indispensable. A declaration which did not aver such promise was insufficient even after verdict; and the law is the same at this day. The promise declared on is always taken to be express. In pleading, there is no such thing as an implied promise. But as no new rule of evidence was required in order to support the new action of assumpsit, it being necessary only to prove a debt, as was necessary when the action was debt, the fictitious doctrine of an implied promise was intro. duced; and for the sake of legal conformity, it was held, when the defendant's legal liability was proved, that the law presumed that he had promised to do what the law made him liable to do. . . . A single example will illustrate these two

fictions [the author had described the kindred fiction of an (implied) request alleged to have been made]. A husband is bound by law to support his wife; and if he wrongfully discard her, any person may furnish support to her, and recover pay therefor of the husband. In the aetion of debt, there would be no necessity to allege a promise in such a case. But the husband might wage his law, and defraud the plaintiff. In the action of assumpsit, the furnishing of the supplies must be alleged to have been by the plaintiff at the husband's request, and a promise of the husband to pay must also be alleged. But proof of the actual facts supports both these allegations. The husband being in law liable to pay is held to have (impliedly) made both the request and the promise." Metcalf on Contracts, pp. 203, 204. This origin of the implied promise, of its invention as a fiction in order to bring the case within the operation of "assumpsit," throws a strong light upon the question, whether, in an action to enforce such a liability under the codes, the plaintiff should, in addition to the actual facts from which the defendant's liability arises, also allege a promise to have been made by him. The promise was simply a formal incident of the particular action in the old system, and is certainly no more than such an incident in the new.

their whole course of reasoning, in the premises which they assume, and in the conclusions which they draw therefrom. But this conflict was, in by far the greater part of the States, confined to the earlier periods of the reform, and has virtually disappeared. There is a substantial agreement among the courts in respect to the general principles which they have finally adopted: whatever differences now exist arise in the process of applying these fundamental doctrines to particular cases. The confusion which actually prevails to a very great extent in several of the States results not from any uncertainty either in the general principles or in the more subordinate rules, but from an entire ignorance or disregard of them by pleaders, and from a neglect to enforce them by the judges.

§ 514. Before entering upon the matter thus outlined a preliminary question suggests itself, upon the answer to which much of the succeeding discussion must turn. This question involves the true relations between the doctrines and rules of pleading enacted by the codes and those which existed previously as parts of the common law and the equity jurisprudence, and may be stated as follows: Are the doctrines and rules contained in the statute to be regarded as the sole guides in pleading under the reformed procedure? or are the ancient methods still controlling, except when inconsistent with some express provisions of the later legislation? In answering this inquiry, the two schools of interpretation so often mentioned again appear, and the difference between them is the same as that already described under a somewhat altered shape. It is plain that the position taken by the courts, in answering the question here suggested, must to a very great extent influence the whole body of practical rules which they adopt in reference to pleading as well as to all the other features of the civil action. According to one theory, these doctrines and rules of the common law and of equity still remain, although changed in many particulars by the reform legislation: the pleader must first recur to them, and must then examine how far their requirements have been abrogated or altered by the statute; in a word, the legislation is purely amendatory, and is not reconstructive. According to the other theory, these doctrines and rules of the common law and of equity do not exist at all as authoritative and controlling,- that is, as controlling because rules of the common law or of equity. The general principles