by numerous decisions in various States, and it seems to be regarded as still operative in all the circumstances to which it was applicable under the former system.

§ 544. In the face of this overwhelming array of authority, it may seem almost presumptuous even to suggest a doubt as to the correctness of the conclusions that have been reached with so much unanimity. I cannot, however, consistently with my very strong convictions, refrain from expressing the opinion, that, in all these rulings concerning the use of the common counts, the courts have overlooked the fundamental conception of the reformed pleading, and have abandoned its essential principles. This position of inevitable opposition was clearly, although unintentionally, described by one of the judges in language already quoted, when he says, "We are inclined to sanction the latter view, and to hold that the facts which, in the judgment of the law, create the indebtedness or liability, need not be set forth in the complaint." Now, the "facts which create the liability" are the "facts constituting the cause of action" which the codes expressly require to be alleged; the two expressions are synonymous; and the direct antagonism between what the court says need not be done, and what the statute says must be done, is patent. But the objection to the doctrine of these decisions does not chiefly rest upon such verbal criticism; it is involved in the very nature of the new theory when contrasted with the old methods. In every species of the common count, the averments, by means of certain prescribed formulas, presented what the. pleader conceived to be the legal effect and operation of the facts instead of the facts themselves, and the most important of them was always a pure conclusion of law. The count for money had and received well illustrates the truth of this proposition. In the allegation that "the defendant was indebted to the plaintiff for money had and received by him to the plaintiff's use," the distinctive element was the phrase "money had and received to the plaintiff's use." This technical expression was not the statement of a fact, in the sense in which that word is used by the codes; if not strictly a pure conclusion of law, it

plied with the terms of the contract, but, professing to act under it, has done for or delivered to the other party something of value to him which he has accepted. This last doctrine is not uni

versally accepted in the broad terms as here stated; but it is the settled rule in Indiana. See Lomax v. Bailey, 7 Blackf. 599.

was at most a symbol to which a certain peculiar meaning had been given. The circumstances under which one person could be liable to another for money had and received were very numerous, embracing contracts express or implied, and even torts and frauds. The mere averment, that the defendant was indebted for money had and received, admitted any of these circumstances in its support, but it did not disclose nor even suggest the real nature of the liability, the actual cause of action upon which the plaintiff relied. The reformed theory of pleading was expressly designed to abrogate forever this general mode of averment, which concealed rather than displayed the true cause of action; it requires the facts to be stated, the facts as they exist or occurred, leaving the law to be determined and applied by the court. The same is true of the common count in every one of its phases. A careful analysis would show that the important and distinctive averments were either naked conclusions of law, or the legal effect and operation of the facts expressed in technical formulas to which a particular meaning had been attached, and which were equally applicable to innumerable different causes of action. The rule which permitted the general count in assumpsit to be sometimes used in an action. upon an express contract was even more arbitrary and technical, and was wholly based upon fictitious notions. The conception of a second implied promise resulting from the duty to perform the original express promise has no foundation whatever in the law of contract, but was invented, with great subtlety, in order to furnish the ground for a resort to general assumpsit instead of special assumpsit in a certain class of cases. All the reasons in its support were swept away by the legislation which abolished the distinctions between the forms of action, since it was in such distinctions alone that those reasons had even the semblance of an existence. My space will not permit this discussion to be pursued any farther, although much more might be added to the foregoing suggestions. If the principles of pleading heretofore developed in the text are true expressions of the reformed theory, the legislature certainly intended that the facts constituting each cause of action should be alleged as they actually happened, not by means of any technical formulas, but in the ordinary language of narrative; and it is, as it appears to me, equally certain that the use of the common counts as complaints or petitions is a violation of these fundamental principles.

§ 545. From the few general principles which thus constitute the simple foundation of the reformed pleading, there result as corollaries certain subordinate doctrines and practical rules, to the development and illustration of which the remaining portion of the present section will be devoted. The immediate object of these special rules is to enforce in complaints or petitions and answers a conformity with the essential principles upon which the system is based, and at the same time to procure a decision of judicial controversies upon their merits, and not upon any mere technical requirements as to form and mode. They relate to the practical methods which must be pursued in setting forth the causes of action and the defences; and the particular subjects with which they deal are (1) insufficient, incomplete, or imperfect allegations, (2) immaterial and redundant allegations, (3) the doctrine that the cause of action or the defence proved must correspond with the one alleged. Connected with and subsidiary to these topics are the remedies provided for each, and particularly that of amendment, which the codes expressly authorize with the utmost freedom, and also the power of electing between the two modes of setting forth the same cause of action under certain circumstances either as ex contractu or as ex delicto. Preliminary, however, to the discussion thus outlined, I shall state and very briefly explain a principle which will necessarily affect its whole course, and largely determine its results, the principle of construction as applied to the pleadings themselves.

§ 546. It was a rule of the common law firmly established and constantly acted upon, that, in examining and deciding all objections involving either form or substance, every pleading was to be construed strongly against the pleader; nothing could be presumed in its favor; nothing could be added, or inferred, or supplied by implication, in order to sustain its sufficiency. This harsh doctrine, unnecessary and illogical in its original conception, and often pushed to extremes that were simply absurd, was the origin of the technicality and excessive precision, which, more than any other features, characterized the ancient system in its condition of highest development. All the codes contain the following provision, or one substantially the same: "In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed with a view to substan

tial justice between the parties." The evident intent of the legislature in this clause was to abrogate at one blow the ancient dogma, and to introduce in its place the contrary principle of a liberal and equitable construction; that is, a construction in accordance with the general nature and design of the pleading as a whole. This mode of interpretation does not require a leaning in favor of the pleader in place of the former tendency against him; it demands a natural spirit of fairness and equity in ascertaining the meaning of any particular averment or group of averments from their relation and connection with the entire pleading and from its general purpose and object. The courts have uniformly adopted this view of the provision; and although in particular instances they may sometimes have departed from it, yet, in their announcement of the theory, they have unanimously conceded that the stern doctrine of the common law has been abolished, and that, instead thereof, an equitable mode of construction has been substituted. From the multitudes of decisions which maintain this position with more or less emphasis I select a few examples, and other illustrations will be subsequently given.

§ 547. The New York Court of Appeals, while construing a complaint, said: "The language is clearly susceptible of this interpretation; and if so, that interpretation should be given in preference to [another which was stated]. If the language admits of the latter interpretation, it may be said to be ambiguous, and that is all. It is not true, that under the code, if there be uncertainty in respect to the nature of the charge, it is to be construed strictly against the pleader. By § 159 in the construction of a pleading, its allegations must be liberally construed with a view to substantial justice." The language used by the Supreme Court of Wisconsin in a similar case, is still stronger: "Contrary to the common-law rule every reasonable intendment and presumption is to be made in favor of the pleading." 2 The same interpretation is given to the provision in Iowa; the old dogma of leaning against the pleader is abandoned, and a liberal and equitable construction is now the rule. The practical force

1 Olcott v. Carroll, 39 N. Y. 436, 438. 2 Morse v. Gilman, 16 Wisc. 504, 507. See also Hazleton v. Union Bank, 32 Wisc. 34, 42, 43, which holds that greater latitude of presumption is admitted to sustain a complaint, when objection to it

is not made until the trial, after issues have been formed by an answer.

3 Shank v. Teeple, 33 Iowa, 189, 191; Foster v. Elliott, 33 Iowa, 216, 223; Gray v. Coan, 23 Iowa, 344; Doolittle v. Green, 32 Iowa, 123, 124.

and operation of this principle, and how much effect it actually produces in the judicial process of construing pleadings, can best be seen by an examination of the decisions in which it has been invoked. A few of them have therefore been selected, and placed in the foot-note. In a very small number of cases, however, the courts seem to have overlooked this change made by the statute, and have expressly declared that the construction must be adverse to the pleader, thus recognizing the ancient rule as still in force;2 while in some others the judicial action was clearly based upon that old doctrine, although it was not formally announced in the opinions. Under the light of this beneficent but new principle, that pleadings are to be construed fairly, equitably, and liberally, with a view to promote the ends of justice, and not enforce any arbitrary and technical dogmas, I shall proceed to consider, in the order already indicated, the several practical rules mentioned above, which regulate the manner of setting forth the cause of action or the defence.

§ 518. I. Insufficient, imperfect, incomplete, or informal allegations; the mode of objecting to and correcting them. The codes. clearly intend to draw a broad line of distinction between an entire failure to state any cause of action or defence, on the one side, which is to be taken advantage of either by the general demurrer for want of sufficient facts, or by the exclusion of all evidence at the trial, and the statement of a cause of action or a defence in an insufficient, imperfect, incomplete, or informal manner, which is to be corrected by a motion to render the pleading more definite and certain by amendment. The courts have, in the main, endeavored to preserve this distinction, but not always with success; since averments have sometimes been treated as merely incomplete, and the pleadings containing them have been sustained on demurrer, which appeared to state no cause of action or defence whatever; while, in other instances, pleadings have been pronounced wholly defective and therefore bad on demurrer, or incapable of admitting any evidence, the allegations of which

1 McGlasson v. Bradford, 7 Bush, 250, 220, 224; Wright v. McCormick, 67 N. C. 252; Joubert v. Carli, 26 Wisc. 594; Clay 27. v. Edgerton, 19 Ohio St. 549, supra, § 535; Gunn . Madigan, 28 Wisc. 158, 164; Robson v. Comstock, 8 Wisc. 372, 374, 875; Morse v. Gilman, 16 Wisc. 504.

2 Commonwealth v. Cook, 8 Bush,

3 For examples, see Hathaway v. Quinby, 1 N. Y. S. C. 386; Doyle . Phoenix Ins. Co., 44 Cal. 264; Scofield v. Whitelegge, 49 N. Y. 259, 261; Holmes v. Williams, 16 Minn. 164, 168.